Sanctions regulation and individual designations have grown in popularity as a foreign and security policy tool across many nations. 

They are implemented as a means to prevent the financing and escalations of conflict. The impact and efficacy of such measures on those being sanctioned is widely assessed but their role in meeting the rights of survivors of these same conflicts which are subject to sanctions is far less considered.

The Islamic State of Iraq and the Levant (ISIL), a proscribed terrorist organisation, took territorial control of vast areas of Syria and Iraq in a campaign of violence, atrocity crimes and genocide. At the height of its ‘operations’, more than 30,000 fighters from at least 85 countries had joined ISIL. 

Approximately 5,000 of these were from European nations with further foreign fighters travelling from the US and Canada – all jurisdictions with established sanctions regimes. By 2015, ISIL had amassed assets worth a reported $2bn from oil sales, licence fees paid to the ‘Caliphate’ from legitimate businesses operating in ISIL-controlled areas, illegal sales of antiquities, human trafficking and ransoms from kidnapping.

In response, the international community acted by introducing the individual sanctions designation, with the UN Al-Qaida Sanctions Committee expanding to become the ISIL (Da’esh) and Al-Qaida Sanctions Committee. Immediately, the call for the states to curb terrorist financing by way of asset freezes, travel bans and arms embargoes was extended in light of these egregious human rights abuses.  

In the summer of 2014, thousands of Yazidi women and children were captured and taken to Syria by ISIL fighters. At the time of capture, they were separated from their fathers, sons and brothers. 

Mothers were forced to watch as ISIL fighters touched the faces of their sons to check if they had reached puberty, and if they had, they were taken and shot. 

Daughters were sold and re-sold to be sexually abused time and time again, driving many to commit suicide rather than bear the pain. Incidents of beheadings, crucifixions and burnings were regularly reported. The utter depravity of these actions shocked parliaments across the world.

Some five Yazidi women were enslaved by Khaled Sharrouf, an Australian citizen who was notoriously pictured standing with his young son, who was holding a severed human head.

The five women were held as slaves by Sharrouf before escaping and, in 2017, the women began their long and still yet unresolved search for accountability. 

Individual criminal accountability, as so often is the case, was impossible as the perpetrator was killed – but reparations for these crimes against humanity and sexual violence in conflict should be. 

It has long been recognised that victims of sexual violence in conflict have a right to redress and justice under international law, but processes to action reparations for these victims and others in their position are near non-existent. This is where sanctions should come in.

How much did the world actually freeze and confiscate? And what now happens to those funds and the fines which are imposed for breach of those sanctions?  

There are more than $800m worth of assets in the US that have been forfeited or paid as part of settlements pursuant to the US ISIL sanctions regime and, since 21 January 2019, the UK’s Office of Financial Sanctions Implementation (OFSI) has issued fines of £20.76m for dealing with funds belonging to, or making economic funds available, to a designated person. 

Whatever is happening to these funds, none of it is making its way to the survivors of the atrocities.

In our search for accountability for these five women, we have taken their case through the Australian courts and now await a decision from the UN Committee Against Torture. 

With an expert counsel team led by Phillippe Sands KC from Doughty Street Chambers and Matrix Chambers, we submitted our response to the UNCAT. Earlier in the proceedings, it was argued that a state cannot be responsible because, among other arguments, it would not be able to finance any reparations.

The state argued, in addition, that it had taken sufficient action by sanctioning the perpetrator. This is a common refrain among sanctioning nations. It needs to be recognised that merely sanctioning and freezing assets does not result in justice for the victims.

In the UK it appears that by March 2020, £100,000 had been frozen under the sanctions regime. Given the ‘noise’ that surrounds sanctions as an active policy tool to prevent conflict, this is perhaps surprisingly limited.

However, those funds will remain frozen indefinitely and no attempt is being made to consider confiscation to fund reparations for victims of crimes against humanity at the hands of ISIL. 

Our research accompanying this case shows that whatever funds that are recovered from confiscations, seizures, forfeitures or fines for breach of sanctions relating to the ISIL conflict, simply go to the nation that imposes the sanctions, rather than to the victims of the conflict.

Just one example illustrates the point: in August 2020 the US Department of Justice announced the “largest ever seizure of terrorist organisations’ cryptocurrency accounts” used by ISIL and two other terrorist organisations, which accounted for “millions of [US] dollars”. This was made available to the US Victims of Terrorism scheme, which is only open to US nationals and not the Yazidi victims of rape and sexual violence perpetrated by ISIL.

At present, we are witnessing a divergence in approaches between those who are deemed to be victims of terrorism, and therefore have access to more support, and those who are victims of international crimes. Often, those who are able to access schemes live in higher income countries, creating a real imbalance in access to vital reparations. 

As Taban Shoresh OBE, genocide survivor of Lotus Flower working in Sinjar for women and girls to build sustainable futures beyond conflict and displacement, explains: “Really it is quite simple, if each country has a duty to provide reparations and if such crimes are financed internationally, then the right thing to do is to finance them from the money they make from sanction breaches which were imposed to stop that conflict.”

Yasmin Waljee is an international pro bono partner at Hogan Lovells.