Sudan: Economic Sanctions
Released: 2005-10-11T00:00:00

Background

The United States maintains a range of economic sanctions on the Government of Sudan. The United States generally restricts foreign aid because Sudan has been found, by the Secretary of State, to be a supporter of acts of international terrorism, is operating under a military dictatorship, and has fallen into arrears in its debt repayment. The United States has also suspended bilateral preferential trade treatment, restricted commercial exports and imports, denied the export of defense articles and defense services, and refused to support requests from Sudan for funding or program support in the international financial institutions for reasons related to terrorism, regional stability, and human rights—including religious freedom, worker rights, and trafficking in persons. As a member state of the United Nations, the United States, is also required to cease the sale or supply of arms and related materiel—transactions the U.S. government already blocks—to non-government entities and individuals operating in Sudan, deny visas or passage through the United States to those cited by the United Nations as those committing human rights atrocities in Darfur, and freeze the assets of those cited.

On September 9, 2004, Secretary of State Powell testified before the Committee on Foreign Relations to report his assessment of the current crisis in Darfur, in Sudan's western region bordering Chad. Secretary Powell reported that the U.S. State Department had "concluded that genocide has been committed in Darfur and that the Government of Sudan and the jinjaweid bear responsibility—and genocide may still be occurring." The Congress, also in mid-2004, declared "that the atrocities unfolding in Darfur, Sudan, are genocide. In January 2005, however, an International Commission of Inquiry on Darfur to the United Nations Secretary General concluded that the Government of the Sudan has not pursued a policy of genocide.

This report outlines actions taken by the United Nations and the economic sanctions currently imposed on Sudan by the United States—describing what is restricted, the statutory basis for the sanctions, and where the authority lies to ease or strengthen those restrictions.

Recent United Nations Actions

U.N. Security Council Resolution 1556

On July 30, 2004, the United Nations Security Council (UNSC) adopted Resolution 1556 to condemn "acts of violence and violations of human rights and international humanitarian law by all parties to the crisis" in the Darfur region of western Sudan, and to single out the Government of Sudan for its primary responsibility to respect human rights, maintain law and order, and protect the population of the region. In doing so, the Security Council cited its authority, under chapter VII of the U.N. Charter, to address threats to the peace, breaches of the peace, and acts of aggression. By issuing UNSC Resolution 1556, the Security Council calls on the Government of Sudan to facilitate international relief of the humanitarian disaster, investigate human rights violations, establish credible security conditions for the civilian population and those attempting to assist them, and resume peace talks with all factions. The Security Council, furthermore, endorses the African Union's deployment of international monitors to Darfur, and urges U.N. member states to materially support the African Union effort. UNSC Resolution 1556 also requires U.N. member states to prevent the sale or supply of arms and related materiel to non-government entities and individuals operating in Sudan.

The U.N. Security Council has demanded that the Government of Sudan "fulfill its commitments to disarm the Janjaweed militias and apprehend and bring to justice Janjaweed leaders and their associates who have incited and carried out human rights and international humanitarian law violations and other atrocities." The Security Council requested that Secretary General Kofi Annan report in 30 days, and monthly thereafter, on any progress of the Government of Sudan to fulfill its commitments, and made it clear that it intends to take further steps against the Government of Sudan "in the event of non-compliance."

According to press reports, Secretary General Annan's appointed envoy to Sudan, Jan Pronk of the Netherlands, in his briefing to the Security Council that constituted Secretary General Annan's first required monthly report, concluded that "there is no recent evidence linking Khartoum to Arab militias rampaging through black African villages in Darfur." The United States publicly criticized the conclusions, citing a report prepared by African Union monitors that contradicted Mr. Pronk's assessment, and urged the mobilization of more observers to the region.

U.N. Security Council Resolution 1564

In his testimony before the Committee on Foreign Relations on September, 9, 2004, Secretary of State Powell announced that the State Department identified genocide in the events of Darfur, and would return to the United Nations to call for immediate action. He declared: the United States will call for a "full-blown and unfettered investigation" by the United Nations to "confirm the true nature, scope and totality of the crimes our evidence reveals." It was acknowledged at the time, however, that adoption of sanctions in the United Nations would be a hard won accomplishment, as China, Pakistan, Russia, Britain, and others had stated that they were unlikely to support punitive measures at this time.

On September 18, 2004, the Security Council adopted Resolution 1564 to request Secretary General Annan to establish an international commission of inquiry empowered to investigate "reports of violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable...." UNSC Resolution 1564 also declares the United Nations' support of the African Union's efforts to expand and enhance its monitoring efforts that grew out of North/South cease-fire negotiations, and encourages member states to provide material support for the AU efforts, to fulfill their earlier pledges for humanitarian contributions, and to provide sustained support to humanitarian efforts in Darfur and neighboring Chad.

UNSC Resolution 1564 declares the Security Council's intent to impose restrictions on Sudan's oil industry, and travel and asset restrictions targeting individual members of the Government of Sudan, if Sudan fails to meet the requirement and intent of UNSC Resolutions 1556 and 1564. No timeframe for further imposition of sanctions is stated, however.

Pursuant to Resolution 1564, in October 2004, the Secretary General appointed a five-member International Commission of Inquiry on Darfur, and requested it report within three months. On January 25, 2005, the International Commission reported its findings in four categories: (1) violations of international humanitarian law and human rights law in Darfur by all parties; (2) whether or not acts of genocide have occurred; (3) the identification of perpetrators of violations; and (4) recommendations on how to hold those perpetrators accountable. The International Commission "established that the Government of the Sudan and the Janjaweed are responsible for serious violations of international human rights and humanitarian law amounting to crimes under international law" and, in particular, found that:

... Government forces and militias conducted indiscriminate attacks, including killing of civilians, torture, enforced disappearances, destruction of villages, rape and other forms of sexual violence, pillaging and forced displacement, throughout Darfur. These acts were conducted on a widespread and systematic basis, and therefore may amount to crimes against humanity. The extensive destruction and displacement have resulted in a loss of livelihood and means of survival for countless women, men and children. In addition to the large scale attacks, many people have been arrested and detained, and many have been held incommunicado for prolonged periods and tortured. The vast majority of the victims of all of these violations have been from the Fur, Zaghawa, Massalit, Jebel, Aranga and other so-called "African" tribes.

The International Commission of Inquiry, at the same time, however:

... concluded that the Government of the Sudan has not pursued a policy of genocide ... the crucial element of genocidal intent appears to be missing, at least as far as the central Government authorities are concerned.... The Commission does recognize that in some instances individuals, including Government officials, may commit acts with genocidal intent. Whether this was the case in Darfur, however, is a determination that only a competent court can make on a case by case basis. [emphasis added]

The report of the International Commission of Inquiry, ambiguous in its findings of no genocide, lack of "genocidal intent," but acts possibly committed with "genocidal intent," and its call for a "competent court" to evaluate the evidence, led to a flurry of international debate and diplomatic maneuvering. The United States called on the United Nations either to establish a new "accountability tribunal" or refer criminal investigations to the special tribunal in Tanzania that oversaw cases related to the 1994 massacres in Rwanda, deploy peacekeepers and impose economic sanctions that would have an impact on Sudan's oil exports. Most other U.N. Security Council members supported the International Commission of Inquiry's recommendation to have the International Criminal Court in The Hague oversee any prosecution. And the Government of Sudan insisted that any prosecution of war crimes in Darfur should be pursued in Sudan's own courts.

U.N. Security Council Resolution 1591

On March 29, 2005, the Security Council adopted Resolution 1591 to require member states to "prevent entry into or transit through their territories of all persons," identified by a newly formed Committee of the Security Council, who "impede the peace process, constitute a threat to the stability in Darfur and the region, commit violations of international humanitarian or human rights law or other atrocities," or violate the arms embargo stated in Resolution 1556. Resolution 1591 also requires member states to "freeze all funds, financial assets and economic resources" of those identified by the Committee. The Resolution delayed the imposition of these two sanctions for 30 days, however, leaving enough time for the removal and relocation of most assets held by an individual or entity subject to the sanction.

U.N. Security Council Resolution 1593

Two days later, the Security Council adopted Resolution 1593 to refer the situation in Darfur to the Prosecutor of the International Criminal Court.

Restrictions on U.S. Foreign Aid

Sudan has been denied U.S. foreign aid under the law since 1988, when it defaulted on servicing its external debt. Subsequent developments—the military overthrow of a democratically elected government in 1989, and support of acts of international terrorism, as determined by the Secretary of State in 1993—also require that the United States deny foreign assistance to Sudan.

Humanitarian aid and food aid are exempted from the restrictions, however, and from 1988 to 2001, such assistance to Sudan averaged more than $48 million each year, primarily in food aid (see Table 1 , below). This stands in contrast to 1987 and earlier, when Sudan averaged more than $216 million per year, and aid ran the gamut from food aid, development assistance, Economic Support Funds, military assistance and International Military Education and Training (IMET).

Today, the United States is the largest donor of humanitarian assistance to Darfur. From February 2003 through September 2005, the United States provided nearly $768 million to nongovernmental organizations (NGOs) working in Darfur and on the Chad/Sudan border.

The United States has also provided funding to support the African Union's deployment of cease-fire observers and human rights monitors to the region. The United Nations has called for an expansion of the African Union forces to 7,700, with possible supplement up to 12,000, with airlift and logistical help from NATO (including the United States), the European Union, and Ukraine (a party to neither NATO nor the EU).

Restricting Aid to a Country in Default of Debt Repayment

In December 1988, Sudan fell more than one year in arrears in servicing its debt to the United States. This debt was accumulated in the form of non-grant U.S. foreign and military aid. As a result, since 1988, Sudan has been denied most foreign assistance

pursuant to sections in both authorization and appropriations legislation. The President may waive the restriction if he finds it in the U.S. national interest to do so.

Most recently, Sudan's debt arrearage—along with its support of international terrorism and its military dictatorship—was also cited by the State Department and the Millennium Challenge Corporation as cause for ineligibility for assistance under the terms of the Millennium Challenge Account.

Restricting Aid to a Country After a Military Coup

On June 30, 1989, Sudan's democratically elected government, led by Prime Minister Sadiq al Mahdi, was overthrown by that country's military forces. As a result, Sudan is denied most foreign assistance pursuant to the annual foreign operations appropriations. On February 28, 1990, President George H.W. Bush invoked this section of law to announce that aid, other than humanitarian assistance, would be denied Sudan. This prohibition continues until the President can determine and certify to Congress that democracy has returned to Sudan on the national level. Sudan is also deemed ineligible for Millennium Challenge Account funding because of its military dictatorship.

Other Restrictions on Foreign Aid in Annual Appropriations

Since FY1989, the annual foreign operations appropriations act has explicitly prohibited Sudan from receiving aid under the Foreign Military Financing Program. FY2005's foreign operations appropriations act specifically denies Sudan eligibility for U.S. debt restructuring programs "unless the Secretary of the Treasury determines and notifies the Committees on Appropriations that a democratically elected government has taken office." The debt restructuring program includes debt accrued through the International Affairs Budget Function 150 account, P.L. 480 agricultural loans, the Export-Import Bank, and certain debt reduction programs enacted in prior years. Sudan is also denied any assistance under the current foreign operations appropriations "except as provided through the regular notification procedures of the Committees on Appropriations."

Restrictions on Foreign Aid Pending in the Current Congressional Session

The foreign operations appropriations measure to fund programs through FY2006, currently under consideration in the 109 th Congress, seeks to continue the restrictions on aid to Sudan related to democracy, foreign military financing, and regular notification procedures. Restrictions on aid imposed because of military regimes or debt arrearage, though not explicitly directed at Sudan, are also continued. The proposal also makes available not less than $112.35 million in bilateral economic assistance to Sudan for disease control programs and debt reduction. None of those funds will be provided to the Government of Sudan, however, unless the Secretary of State can determine and certify to Congress that (1) the Government of Sudan has disarmed and disbanded government-supported militia groups operating in Darfur; (2) the Government of Sudan and related militia groups are honoring the cease-fire agreement of April 2004; and (3) the Government of Sudan allows international humanitarian and human rights groups access to Darfur.

Restrictions as a Result of Terrorism Designation

In August 1993, the Secretary of State determined that the Government of Sudan had "repeatedly provided support for acts of international terrorism." As a result, Sudan is subject to a long list of economic restrictions and a withdrawal of U.S. foreign aid. U.S. exporters are required to obtain validated licenses for the export of goods or technology to Sudan, and generally there is a presumption that the Departments of Commerce (for dual-use goods) or State (for defense articles and defense services) will deny the issuance of those licenses. As a U.S.-designated supporter of international terrorism, Sudan is generally denied foreign assistance, Millennium Challenge Account funding, agricultural aid, Peace Corps programs, support through the Export-Import Bank, support in the international financial institutions, opposition to loans or credits from the International Monetary Fund, and withholding of trade preferences under the Generalized System of Preferences.

In April 1999, at the height of debate in Congress over the effectiveness—and unintended consequences—of economic sanctions, the Clinton administration announced that it would remove food and medicine from its sanctions policies in future applications, and it would issue new regulations for some countries—Iran, Libya, and Sudan—denied access to U.S. agricultural and medical exports. Congress later enacted the Trade Sanctions Reform and Export Enhancement Act of 2000 to place in permanent law the exemption of food and medicine exports in sanctions regimes. For state sponsors of terrorism, including Sudan, the export of agricultural commodities, medicine, or medical devices requires a license from the Department of Commerce. U.S. government financing of commercial exports to state sponsors of terrorism, including Sudan, is prohibited unless the President determines and certifies to Congress that such financing is in the United States' national security interest, or should be provided for humanitarian reasons.

Restrictions on Trade, Transactions and International Bank Funding

Typically, as it is the case with Sudan, economic and diplomatic prohibitions are multilayered, incrementally denying access to funds needed to legitimize a targeted government. United States condemnation for Sudan's military dictatorship in 1989 denied the country many forms of U.S. foreign aid. In 1991 President George H.W. Bush suspended trade preferences afforded Sudan under the Generalized System of Preferences. He cited the Government of Sudan's failure to promote and protect internationally recognized standards of worker rights. In 1993, the State Department added Sudan to the list of countries found to be supporting acts of international terrorism. In 1997, President Clinton invoked the most powerful economic authority available to his office to prohibit nearly all trade and transactions between the United States and Sudan. In each case, it is left to the President to determine that improved conditions warrant a restoration of bilateral relations and resumption of aid, trade, support in the banks, and transactions.

National Emergency and Resulting Economic Sanctions

On November 3, 1997, President Clinton invoked authority under the National Emergencies Act and the International Emergency Economic Powers Act to declare that a national emergency existed because of the Government of Sudan's "continued support of international terrorism; ongoing efforts to destabilize neighboring governments; and the prevalence of human rights violations, including slavery and the denial of religious freedom...." He issued Executive Order 13067 to block property and assets held by the Government of Sudan in the United States, and to prohibit most transactions with Sudan. Executive Order 13067 prohibits a U.S. person from engaging in any of the following:

import into the United States of any goods or services of Sudanese origin, other than information or informational materials; export or reexport to Sudan of any goods, technology, or services from the United States, except for donations of articles intended to relieve human suffering, such as food, clothing, and medicine; facilitation of exports to or imports from Sudan; performance of a contract in support of an industrial, commercial, public utility or governmental project in Sudan; grant or extension of credits or loans to the Government of Sudan; transactions related to transportation of cargo to or from Sudan, or actual transportation to or from Sudan, including intermediate stops in the country; and any other transaction that is committed with the intention of evading or avoiding the other prohibitions.

In November 2000, Congress adopted legislation to require the Secretary of the Treasury to consider approving licenses for the import of gum arabic from Sudan. Gum arabic, a resin-based substance widely used in the manufacture of inks, adhesives, soft drinks, confections, and medicines, is one of Sudan's chief exports. While U.S. manufacturers were denied gum arabic from Sudan, European competitors could trade in the commodity freely. Congress found that Sudan held a "virtual monopoly on the world's supply of the highest grade of gum arabic" and a prohibition on its importation under Executive Order 13067 was devastating to the U.S. gum arabic processing industry. Gum arabic became the exception to the comprehensive trade restrictions imposed by the Executive Branch.

Any executive order issued under the authority of the National Emergencies Act and International Emergency Economic Powers Act requires annual renewal from the President, and only the President may revoke such an order.

Trafficking

On September 9, 2003, President George W. Bush imposed economic sanctions on Sudan—one among a half dozen countries—for having failed to meet the minimum human rights standards and obligations set forth in the Trafficking Victims Protection Act of 2000. The President noted that, as Sudan received no nonhumanitarian, nontrade-related foreign assistance from the United States, he was limited to denying funding for participation by Sudanese officials or employees in educational and cultural exchange programs until Sudan complied with minimum standards or make significant efforts to bring itself into compliance with the law.

In September 2005, however, the President moved Sudan from Tier 3 (sanctionable), as it was so designated by the Secretary of State in June 2005, to Tier 2 (watchlist) status, because of significant steps the government had taken to fight trafficking. The State Department's Office to Monitor and Combat Trafficking in Persons reported, for those countries so elevated:

These countries took concrete actions to prosecute traffickers, protect victims, and to prevent the crime of trafficking. They increased efforts to identify and rescue trafficking victims, crafted new anti-trafficking legislation and procedures among other significant measures. In several instances, these actions were taken by countries facing resource constraints and/or significant internal political challenges. This demonstrates what can be accomplished when the commitment exists to combat trafficking in persons. We commend these governments for their actions. Sudan was reassessed based in large part on the government's commitment to implement a plan of action to end sexual violence against women in Darfur. We will look to the Sudanese government to ensure quick and effective implementation of the plan.

Exceptions to Sanctions

In fine-tuning the imposition of economic sanctions on Sudan, Congress made an effort to distinguish between the Government of Sudan, the people of Sudan, and areas of the country outside of control of the government, to make aid and commerce available to the general population, with enactment of the following in the Assistance for International Malaria Control Act:

Sec. 501. Assistance Efforts in Sudan.

(a) Additional Authorities.—Notwithstanding any other provision of law, the President is authorized to undertake appropriate programs using Federal agencies, contractual arrangements, or direct support of indigenous groups, agencies, or organizations in areas outside of control of the Government of Sudan in an effort to provide emergency relief, promote economic self-sufficiency, build civil authority, provide education, enhance rule of law and the development of judicial and legal frameworks, support people-to-people reconciliation efforts, or implement any program in support of any viable peace agreement at the local, regional, or national level in Sudan.

(b) Exception to Export Prohibitions.—Notwithstanding any other provision of law, the prohibition set forth with respect to Sudan in Executive Order 13067 of November 3, 1997 (62 Fed. Register 59989) shall not apply to any export from an area in Sudan outside of control of the Government of Sudan, or to any necessary transaction directly related to that export, if the President determines that the export or related transaction, as the case may be, would directly benefit the economic development of that area and its people.

The Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2005, further limits the implementation of economic sanctions to only those parts of the country under control of the Government of Sudan. Thus, despite fairly comprehensive and longstanding restrictions on foreign aid imposed under various statutes for terrorism, debt arrearage, or military dictatorship, language in the Assistance for International Malaria Control Act, and subsequent acts, authorizes the President to override those restrictions as they might apply to large portions of Sudan's population.

Congress also singled out the National Democratic Alliance of Sudan as exempt from economic sanctions restricting foreign aid in the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2005. Economic Support Funds may be made available to that group "to strengthen its ability to protect civilians from attacks, slave raids, and aerial bombardment by the Sudanese Government forces and its militia allies..." though such funding is "subject to the regular notification procedures of the Committees on Appropriations."

Sudan Peace Act and Comprehensive Peace in Sudan Act of 2004

The Sudan Peace Act, as originally enacted, requires the President to determine and certify to Congress, on a semi-annual basis, whether "the Government of Sudan and the Sudan People's Liberation Movement are negotiating in good faith and that negotiations should continue." Since its enactment, on October 21, 2002, the President regularly made a positive determination, most recently on April 24, 2004. If the President found himself unable to make this determination, he was required to:

instruct U.S. executive directors in the international financial institutions to continue to vote against loans, credits, guarantees, or extension of any of these, to the Government of Sudan; consider downgrading diplomatic relations; take all steps, unilateral and multilateral, to deny the Government of Sudan access to oil revenues; and seek a U.N. Security Council Resolution to impose an arms embargo on the Government of Sudan.

If these economic and diplomatic sanctions are imposed, the President could certify at any time that good faith negotiations had resumed, and lift the sanctions.

The Sudan Peace Act also instructs the President to consider "downgrading or suspending diplomatic relations between the United States and the Government of Sudan...," though this is not mandatory. The act also: (1) authorizes the President "to provide increased assistance to the areas of Sudan that are not controlled by the Government of Sudan to prepare the population for peace and democratic governance, including support for civil administration, communications infrastructure, education, health, and agriculture"; (2) requires the President to suspend assistance for the Sudan People's Liberation Movement (SPLM), except for aid related to health, education, and humanitarian assistance, if he finds that the SPLM "has not engaged in good faith negotiations or has failed to honor the agreements signed"; and (3) requires the President to suspend foreign aid to the Government of Sudan if he finds that it has resumed objectionable human rights behavior after he certifies to its cessation.

The Comprehensive Peace in Sudan Act of 2004, however, also amended the Sudan Peace Act to authorize the President to provide $100 million for FY2005 and unspecified amounts for the subsequent two years, notwithstanding any other provision of law , "to support the implementation of a comprehensive peace agreement that applies to all regions of Sudan, including the Darfur region." The amended Act also authorizes the President to use $200 million in FY2005 "to address the humanitarian and human rights crisis in the Darfur region and eastern Chad, including to support the African Union mission in the Darfur region, provided that no assistance may be made available to the Government of Sudan."

The Comprehensive Peace in Sudan Act of 2004 requires the President to impose the economic and diplomatic sanctions stated in the Sudan Peace Act (and outlined above, relating to international financial institutions, oil revenues, diplomatic relations, and an arms embargo)) as well as freeze U.S.-based assets of senior officials of the Government of Sudan, within 30 days of enactment (which occurred December 23, 2004). The President is authorized to waive implementation if he finds it in the national interest to do so.

The Comprehensive Peace in Sudan Act of 2004 also continues restrictions imposed on foreign aid in the foreign assistance appropriations Act, 2004, unless the President finds that the following conditions, stated in the Sudan Peace Act, as amended, are met, namely:

that the Government of Sudan has taken demonstrable steps to—

(A) ensure that the armed forces of Sudan and any associated militias are not committing atrocities or obstructing human rights monitors or the provision of humanitarian assistance;

(B) demobilize and disarm militias supported or created by the Government of Sudan;

(C) allow full and unfettered humanitarian assistance to all regions of Sudan, including the Darfur region;

(D) allow an international commission of inquiry to conduct an investigation of atrocities in the Darfur region, in a manner consistent with United National Security Council Resolution 1564 (September 18, 2004), to investigate reports of violations of international humanitarian law and human rights law in the Darfur region by all parties, to determine also whether or not acts of genocide have occurred and to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable;

(E) cooperate fully with the African Union, the United Nations, and all other observer, monitoring, and protection missions mandated to operate in Sudan;

(F) permit the safe and voluntary return of displaced persons and refugees to their homes and rebuild the communities destroyed in the violence; and

(G) implement the final agreements reached in the Naivasha peace process and install a new coalition government based on the Nairobi Declaration on the Final Phase of Peace in the Sudan signed on June 5, 2004.