The restrictions that raise the greatest tensions with humanitarian action are CT measures that criminalize financial and other types of support to designated persons and groups, and financial sanctions.
The CT measures that raise the most significant tensions with humanitarian action are those that criminalize financial and other types of support to persons and groups designated as terrorist, and financial sanctions. Neither of the two foundational instruments in this area – the 1999 International Convention for the Suppression of Terrorist Financing and SCR 1373 – refers to, let alone excludes, humanitarian action. This is not surprising, as both instruments were adopted before their impact on humanitarian action was identified. It is precisely because they did not include safeguards that problems are now arising. As problems have become apparent, progressively more significant steps have been taken to avoid and mitigate the adverse impact of CT measures on humanitarian action.
This chapter discusses the two kinds of measure – criminal measures and financial sanctions – and, in relation to each, notes how they can give rise to tensions, and the approaches adopted to date for safeguarding IHL and humanitarian action.
3.1 Criminal measures
Traditionally, new international legal obligations in the field of CT are elaborated by treaties. These multilateral conventions are negotiated by all states that wish to participate in the process, on an equal footing and in a transparent manner. They are instruments of criminal law, where offences are defined as clearly as possible to meet requirements of legal certainty.
Since 2001 the Security Council has also been ‘legislating’ in this area by means of binding resolutions requiring all UN member states to criminalize particular acts. The practice of the Council in imposing binding obligations on states, rather than leaving states to negotiate treaties themselves, has been criticized on substantive and procedural grounds. As a matter of substance, resolutions are the result of political negotiations rather than expert legal discussion, which can lead to wording that is frequently general and vague and does not provide the legal certainty required for criminal offences. Procedurally, the process deprives states that are not Security Council members of the opportunity to contribute to the elaboration of the offences, even though they are obliged to give effect to them.
To capture the evolving manifestations of terrorism, the acts criminalized by the Security Council, and by states when giving effect to the resolutions domestically or when elaborating additional offences, have become progressively more remote from actual acts of violence. This has occurred, for example, in relation to terrorism-funding crimes, where the offence has shifted from the provision of funds with the intention or knowledge that they would contribute to an act of terrorism, to support of a terrorist group more broadly.
The present research paper focuses on the implications of the crimes for humanitarian action. However, concerns have been also expressed about this progressive broadening of CT offences from a criminal law and human rights perspective. Among other things, the sustained creep of offences into the ‘pre-crime space’ means that they cover actions that are not criminal or illegal per se – such as purchasing a plane ticket or fertilizers – but only become so because of their purpose. Consequently, establishing the requisite mental element – determining that the acts were carried out for a particular purpose – assumes centre stage in prosecutions. This raises concerns that such intentions may be inferred at least in part from a person’s ideologies or religious beliefs, or that, conversely, potential ‘foreign fighters’ may be acquitted because of the challenges of establishing this purpose.
As discussed below, precisely to avoid having to establish this purpose, some states have adopted extremely broad laws prohibiting travel to areas under the control of groups designated as terrorist. In turn, this has given rise to challenges for humanitarian action that would not have arisen, or not so starkly, had the offences been more narrowly defined, retaining the requirement of purpose.
From a human rights perspective, concerns have also been expressed that the curtailment of human rights this extensive criminalization entails may not meet the requirements of necessity and proportionality. It may also be incompatible with the principle of legality, which requires offences to be defined with sufficient precision to allow a person to foreseeably know the scope of liability. These questions must be addressed on an offence-by-offence basis.
As far as humanitarian action is concerned, it is the measures that criminalize the provision of funds or assets or other types of support that raise the most significant tensions.
As far as humanitarian action is concerned, it is the measures that criminalize the provision of funds or assets or other types of support that raise the most significant tensions. In addition, when giving effect to SCR 2178 (2014) on ‘terrorist fighters’, a small number of states have established extremely broad crimes that can capture travel undertaken to conduct humanitarian operations.
Retaining the focus on the measures that give rise to the greatest tensions with humanitarian action, the following sections consider the restrictions adopted in conventions, Security Council resolutions and domestic law, presenting the offences and any safeguards that exist.
3.1.1 The 1999 Terrorist Financing Convention
The 1999 International Convention for the Suppression of the Financing of Terrorism was the first treaty to focus on activities that support acts of terrorism rather than acts of terrorist violence. It requires parties to make it an offence to ‘provide or collect funds by any means, directly or indirectly, unlawfully and wilfully, with the intention that they should be used, or in the knowledge that they are to be used, in full or in part, in order to carry out’ an act of terrorism as defined in the Convention.
The scope of the offence is limited in a number of important ways, both in terms of the acts that are criminalized, and the mental element required for the commission of the offences. In terms of the acts, the crime relates to the collection or provision of ‘funds’. These are defined broadly to include assets of every kind, so could cover food, medicine, water, fuel and shelter materials provided in the course of humanitarian operations. The definition does not include services. Importantly, the funds must be provided to carry out an act of terrorism. The Convention does not prohibit making funds available to a terrorist group more generally. Moreover, the mental element required for the commission of the offence is high: the funds must be provided with the intention or knowledge that they would be used for the commission of an act of terrorism.
For these reasons, funds or assets that might end up in the hands of terrorist groups in the course of humanitarian operations are extremely unlikely to lead to the commission of the offence under the Convention. This possibility was addressed during the negotiations, and it was considered that the requirement that the funds be provided ‘unlawfully’ in the definition of the offence sufficed to exclude such cases.
In addition, like all CT instruments adopted under the auspices of the UN since 1997, the Convention includes a safeguard clause noting that:
This clause could arguably be invoked to exclude from the scope of the Convention assets provided in the course of humanitarian operations. Criminalizing their provision would ‘affect other rights, obligations and responsibilities of States and individuals’ under IHL. This said, in view of the narrow scope of the offence, it is hard to see how assets provided in such circumstances could fall within it in the first place.
3.1.2 Security Council resolutions
Two aspects of the 1373 series of CT-related resolutions need to be considered: first, which measures raise particular challenges for humanitarian action; second, and more generally, how, if at all, they address their interplay with IHL.
3.1.2.1 Terrorist financing
The Security Council has addressed financial support to terrorism from the outset of its thematic involvement in CT. Resolution 1373 itself required states both to criminalize terrorist financing and to impose financial sanctions on those who commit or attempt to commit terrorist acts.
As far as the crime is concerned, the Council requires states to:
SCR 1373 thus mirrors the approach of the 1999 Convention, requiring a link between the funds and the commission of terrorist acts.
Since 2015, however, the Security Council has progressively called upon states to adopt a broader approach to terrorism financing offences. The Financial Action Task Force (FATF) played a key role in this. FATF is an intergovernmental body, with a membership of 39, representing most of the world’s major financial centres. It has developed a series of recommendations to promote the implementation of measures to combat terrorist financing. Its Recommendation 5 of 2012 on terrorist financing recommended that states ‘should criminalise not only the financing of terrorist acts but also the financing of terrorist organisations and individual terrorists even in the absence of a link to a specific terrorist act or acts’.
SCR 1373 thus mirrors the approach of the 1999 Convention, requiring a link between the funds and the commission of terrorist acts.
Guidance on Recommendation 5 and its Interpretive Guidance issued by FATF in 2016 stated that the Recommendation deliberately went beyond the obligations in the 1999 Terrorist Financing Convention by requiring states to also criminalize the financing of terrorist organizations and individual terrorists on a broader basis, without a link to specific terrorist acts. According to this Guidance, this was necessary because terrorist organizations do not actually use the majority of financing to meet the direct costs of mounting attacks, but rather for broad organizational support including propaganda, recruitment, radicalization and training.
FATF’s approach is also driven by its view that ‘all funds or other assets are fungible’. An organization may spend available assets on activities other than those for which they were originally intended. Even if specific funds or assets are used for non-attack expenses, they may substitute for other resources which can then be used to pay for attacks. In view of this, FATF considered it necessary to criminalize the provision of funds to terrorist organizations more generally.
While these may be valid reasons for expanding the scope of the crime, what is problematic is the fact that this recommendation, by a self-described ‘policy-making body’ with limited membership, was taken up by the Security Council and transformed into an obligation binding on all UN member states.
The nuance that existed in the 2016 FATF Guidance between existing binding obligations under the 1999 Convention and the broader approach that FATF recommended states to adopt was lost in the references to Recommendation 5 in Security Council resolutions. These progressed from highlighting that the Recommendation ‘applies to the financing of terrorist organizations or individual terrorists for any purpose […] even in the absence of a link to a specific terrorist act’; to emphasizing ‘the importance of States establishing as a serious criminal offence […] the willful violation of the prohibition on financing of terrorist organizations […] for any purpose […] including […] even in the absence of a direct link to a specific terrorist act’; and culminating with SCR 2462 (2019) on terrorist financing. Here the Council adopted a binding decision requiring states to criminalize the wilful provision of funds and assets:
This is a significantly broader offence than that in the 1999 Terrorist Financing Convention and covers the provision of funds to a terrorist organization.
On this occasion the Security Council once again assumed a ‘legislative function’ in CT matters. It deprived states that were not Council members in 2019 of the opportunity to discuss the broadening of the offence, and to determine whether it would be appropriate to include express exclusions, most notably for humanitarian action. The dynamic dialogue on the interplay between new crimes and IHL that has marked the negotiations of the various CT conventions was bypassed.
3.1.2.2 Foreign fighters
Since 2001 Security Council CT resolutions have addressed an extremely broad range of topics, reflecting the evolving manifestations of international terrorism. In addition to the measures on terrorist financing, the resolutions on ‘foreign fighters’ have the most immediate point of contact with humanitarian action and other aspects of IHL.
In addition to recruitment-related offences, SCR 2178 (2014) requires states to establish criminal offences to penalize travel or attempted travel ‘for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training.’ Despite the clear requirement that prohibited travel be for the purpose of conducting various forms of terrorist activity, and possibly precisely because of the difficulty of determining the existence of this purpose, a small number of states have broadened the scope of the offence. They have criminalized entering or remaining in areas under the control of terrorist groups, without requiring any additional intent to engage in or support terrorist activity.
This approach raises immediate problems for humanitarian organizations and their staff, as civilians in areas under the control of groups designated as terrorist, including ISIL/Al-Qaeda affiliates in Syria and Yemen and the Sahel, and Boko Haram in Nigeria, are often in extreme need. As discussed below, after extensive legislative discussion, safeguards were eventually included in the relevant domestic measures.
3.1.2.3 The interplay with IHL
There has been a steady evolution in how the Security Council has articulated the interplay between the measures it requires states to adopt and IHL.
The earliest resolutions in the 1373 series did not refer to international law. As of 2003, they started to include a general reminder that states must ensure that measures taken to combat terrorism are in accordance with international law, and, in particular, international human rights, refugee and humanitarian law. Initially this language was in preambular paragraphs, but as of 2005 the Council started also including it in operative paragraphs. Since then, resolutions have systematically included references to the need to comply with international law, including IHL.
Resolution 2462 (2019) on terrorist financing has taken this progression one step further. Here, acting under Chapter VII of the UN Charter, the Council
There was never any question that states must comply with IHL. However, the adoption by the Council of a binding decision, which expressly requires member states to ensure that all CT measures they adopt comply with IHL, puts to rest any doubts that may have existed as to whether the Council had intended to override IHL.
Some analyses of the interplay between CT measures and IHL suggest that tensions and inconsistencies should be resolved by determining which body of law is the lex specialis, or by giving priority to measures adopted by the Security Council pursuant to Article 103 of the UN Charter. However, the evolving Council practice just outlined confirms a requirement of ‘coordinated interpretation’, whereby CT measures are adopted, implemented and interpreted by courts and other relevant bodies so as to comply with IHL.
The need to comply with the Security Council’s express demand that all CT measures comply with IHL is a powerful argument for including safeguards for humanitarian action when states adopt new measures. While it is unlikely to lead states to amend existing law – like, for example, the US’s notoriously broad Material Support Statute – it can be invoked in litigation as a guide to how it should be interpreted.
These resolutions are addressed to member states. Must the Security Council itself also comply with IHL when adopting CT and other relevant measures such as sanctions? There are a number of grounds for concluding it should, but the question remains unsettled. Whatever the arguments, it seems clear that, in the absence of a ‘manifest intent’ by the Council to derogate from other rules of international law, including IHL, the same argument for coordinated or harmonious interpretation can be made for measures adopted by the Council itself and not just their implementation domestically.
3.1.2.4 Recommendations
- The Security Council should continue to use proscriptive language requiring states to ensure that all CT measures they adopt are consistent with IHL.
- This obligation to ensure that CT measures are consistent with international law should continue to guide domestic legislative and other processes for the elaboration and implementation of CT measures.
- FATF should update its Guidance to Recommendation 5 to clarify that the expanded definition of terrorism financing that it proposed, and that has been promoted by the Security Council, should not apply to funds or assets provided in the course of humanitarian operations.
- Once FATF has adopted this guidance, it should be reflected in relevant Security Council resolutions.
- If states adopt a definition of terrorist financing in their domestic law that goes beyond that of the 1999 Terrorist Financing Convention, they should couple it with an exception for funds or assets provided in the course of humanitarian action.
- While it is preferable for new offences to be elaborated pursuant to multilateral treaty negotiations, whenever the Council adopts measures requiring states to establish new offences it should continue also to demand expressly that the measures adopted by states comply with IHL.
3.1.3 Domestic implementation of international criminal CT measures
It is left to member states to give effect in domestic law to their obligations under CT conventions and binding Security Council resolutions. States can, of course, adopt additional measures. Retaining the focus on offences that raise the most significant tensions with humanitarian action, the present section outlines some recent practice.
3.1.3.1 Criminal CT measures adopted by the European Union
As far as the European Union and its member states are concerned, EU Directive 2017/514 on combating terrorism is the most recent in a series of EU measures that harmonize member states’ criminal justice CT response, including by giving effect to Security Council CT decisions.
For present purposes, it suffices to consider the aspects of the Directive of immediate relevance to humanitarian action: how the offences of terrorist financing and travel for the purpose of terrorism are framed, and how humanitarian activities are safeguarded.
With regard to terrorist financing, the Directive follows the approach of the 1999 Terrorist Financing Convention, limiting the crime to where the funds or assets are to be used to commit, or to contribute to the commission of a terrorist act.
The offence of ‘travelling for the purpose of terrorism’ is also framed narrowly, retaining the requirement in SCR 2178 that the travel have a purpose connected to terrorism.
Importantly, the Directive includes two preambular paragraphs or recitals that specifically address the interplay of all the criminal measures in the Directive with IHL. The first emphasizes that the Directive should not alter ‘the rights, obligations and responsibilities of the Member States under international law, including under international humanitarian law’. The second recital was included by the European Parliament when it reviewed the draft of the 2017 Directive, and is of direct relevance to humanitarian action. It notes that:
Recitals are not operational paragraphs, and it is regrettable that the safeguards could not be included in the binding parts of the Directive which would promote uniform implementation; nonetheless, recitals can provide guidance on interpretation. When implementing the Directive, a small number of member states included recital 37 setting out the exclusion and safeguard clause into their domestic law, and the courts of some member states have referred to it when interpreting crimes established pursuant to the Directive.
It was not possible to determine for the purpose of this paper whether recital 38 has also been expressly included in domestic measures. A 2020 Commission report on the implementation of the Directive considered the recital and noted that:
This provides a degree of reassurance that the EU and its member states are aware of the risks that CT measures may pose, and are taking measures to avoid criminalizing activities conducted in the course of humanitarian action.
3.1.3.1.1 Recommendations at EU level
- The EU should continue to include express safeguards for humanitarian action in future criminal terrorism instruments, ideally in operative paragraphs.
- EU member states should retain the 2017 Directive’s narrow focus of criminal offences of terrorist financing and travel for the purpose of terrorism when establishing domestic offences.
- EU member states should also include the safeguard clause for humanitarian action in their domestic criminal CT measures – as a general exception and also in relation to specific offences.
3.1.3.2 Domestic measures
When establishing new domestic terrorism offences, states are beginning to include safeguards for humanitarian action. Submissions by civil society, think-tanks and academics appear to have played an important role in their inclusion by some states. The possibility of relying on Security Council resolutions or EU measures requiring the inclusion of such safeguards significantly strengthens the arguments.
When establishing new domestic terrorism offences, states are beginning to include safeguards for humanitarian action.
A comprehensive analysis of the approach taken by domestic legislatures is beyond the scope of the present paper, which limits itself to highlighting recent instances when express safeguards referring to humanitarian action have been included. It is important to note that no instances were found when efforts to include safeguards proved unsuccessful. The approaches adopted vary: some states exclude humanitarian action from all terrorism offences, while others only exclude it from certain offences.
Australia’s Criminal Code was the first to include exceptions for humanitarian action for some crimes. These were particularly important in view of the breadth of certain offences and have proved useful precedents for encouraging other states to adopt similar safeguards. For example, the offence of ‘associating with’ terrorist organizations includes an exception for when this is only for the purpose of providing aid of a humanitarian nature. Similarly, the offence of entering or remaining in a ‘declared area’ – i.e. an area declared by the minister for foreign affairs as one where a listed foreign entity is engaging in hostile activity – is not committed if a person enters, or remains in, the area solely for ‘legitimate purposes’. These include providing aid of a humanitarian nature.
Chad’s 2020 law on the repression of acts of terrorism includes a general IHL safeguard clause, and a clause specifically excluding humanitarian activities from its scope.
In 2020 Ethiopia adopted a proclamation on the Prevention and Suppression of Terrorist Crimes. The crime of rendering support to the commission of a terrorist act or to a terrorist organization includes an exception for ‘humanitarian aid given by Organizations engaged in humanitarian activities’.
The Philippines’ 2020 Anti-Terrorism Act takes a narrower approach: the exception only relates to one crime. The offence of ‘providing material support to terrorists’ includes an exception for ‘humanitarian activities’ conducted by certain actors: the International Committee of the Red Cross (ICRC), the Philippine Red Cross and ‘other state-recognized impartial humanitarian partners or organizations in conformity with […] International Humanitarian Law’. The Implementing Rules and Regulations to the Act task the Anti-Terrorism Council (ATC), consisting of cabinet members, with determining whether an organization falls within the scope of the exception. The ATC may adopt a mechanism for receiving recommendations to this effect.
The criteria for determining what is a humanitarian organization, and fears about abuse of this ‘status’ are states’ most frequent reservations about granting exceptions. At present the Philippines is the only state that has expressly addressed this issue in law, and identified which institution is responsible for making the determination. The country’s Ministry of Justice has sought guidance from the UN to determine what constitutes an ‘impartial humanitarian organization’, but to date has not made its interpretation public. The legislation of other states does not provide guidance on this issue, which is consequently left to courts to determine, if prosecutions are brought and the exceptions invoked.
In 2020 Switzerland amended its penal code by adding a new offence of ‘support’ to the activities of a terrorist organization. This offence has been criticized for its breadth, as it is not limited to support to the illegal activities of the group. On a positive note, it includes an exception for humanitarian services provided by an impartial humanitarian organization, like the International Committee of the Red Cross, in accordance with common Article 3 of the Geneva Conventions.
The dynamics surrounding the inclusion of the exception shed some light on the concerns of different stakeholders. The government’s initial draft did not include it. Ministries took different views: while the Federal Department of Foreign Affairs supported its inclusion, the Federal Department of Justice and Police was opposed, as it did not want to include ‘loopholes’ or gaps in the law. Concerns were also expressed that if the law included an exception it would not comply with FATF Recommendations – another instance of FATF’s pervasive influence.
Ultimately the exception was included by Parliament, where the concerted submissions and efforts of humanitarian organisations and academics played a significant role. Within Parliament, concerns related to the risk of abuse by ‘self-declared’ humanitarian actors.
This experience is telling, as it shows that ‘even in Switzerland’, the state most closely associated with humanitarianism, ministries may have priorities other than safeguarding humanitarian action. As in the cases of the UK and the Netherlands discussed below, engagement with parliament seems to be a key moment of dialogue – for highlighting concerns, but also for finding approaches that take into account the needs of humanitarian actors and the concerns of different parts of government.
A further series of exceptions for humanitarian action have been included in domestic measures to prevent and punish the travel of ‘foreign fighters’. As noted earlier, SCR 2178 (2014) requires states to criminalize travel for the purpose of participation in various forms of support to acts of terrorism or terrorist groups. Because of the perceived difficulty of establishing this purpose, a small number of states – to date Australia, Denmark and the UK – have adopted a significantly broader approach that criminalizes travel or presence in particular areas under the control of terrorist groups without having to show this terrorist purpose. All these offences exclude travel or presence when this is to conduct humanitarian action. Precisely how they do so varies.
Engagement with parliament seems to be a key moment of dialogue – for highlighting concerns, but also for finding approaches that take into account the needs of humanitarian actors and the concerns of different parts of government.
Australia and the UK have done so by means of an exception to the offence. The offence of ‘entering or remaining in declared areas’ in the Australian Criminal Code includes an exception for when this is solely for ‘legitimate reasons’. These include ‘providing aid of a humanitarian nature’. The UK’s 2019 Counter-Terrorism and Border Security Act takes a similar approach. A person does not commit the offence of ‘entering or remaining in a designated area’ if s/he does so for a number of purposes, including ‘providing aid of a humanitarian nature’. In both cases, the exceptions were included during parliamentary review of the governments’ bills, which included active involvement by humanitarian organizations.
Denmark has taken a different approach. In 2016 it enacted a new offence of entering or remaining in an area designated by the government as one where a terrorist group is a party to an armed conflict. The offence includes an exception for when such travel or presence is ‘in the exercise of Danish, foreign or international public service or duties’. Additionally, it foresees the possibility of applying to the Ministry of Justice for authorization to travel or to remain in such areas ‘for a recognisable purpose’ including for ‘a group of persons who are affiliated with a specific company or organization’. Humanitarian organizations and their staff are thus required to seek prior authorization from the Minister of Justice.
While this approach might have the advantage of certainty – the authorized organizations would know they are acting lawfully – it is problematic in terms of humanitarian principles. Humanitarian action must be conducted in a manner that is impartial, i.e. non-discriminatory and prioritized exclusively on the basis of need. Humanitarian actors must also be neutral and independent – and be perceived as such. Requiring authorization from a third state to be able to respond to people in need undermines their capacity to operate in accordance with these principles, and risks depriving people in severe need of life-saving assistance.
Concerns have also been expressed about the practical feasibility of this approach, in view of the delays to which the authorization process may give rise. Although areas in Iraq and Syria have been designated, Danish humanitarian organizations were not active in either, so the measure has not been put to the test.
A bill to criminalize ‘staying in an area under the control of a terrorist group’ is currently before the Netherlands parliament. The draft that reached the Senate included a limited exception for people who are in such areas ‘on behalf of the state or an inter-governmental organization, or if the person is a representative of the Dutch Red Cross or the International Committee of the Red Cross’. One of the remaining points of divergence was how to accommodate humanitarian action conducted by other organizations – whether by expanding the exception, or by a form of pre-approval, as in Denmark.
In May 2021 the Netherlands minister of justice and security announced that, following discussions with humanitarian organizations and the criticism received from UN Special Rapporteurs, he would submit a bill extending the exception to cover people present ‘for the sole purpose of performing activities as an aid worker working for an independent humanitarian organisation’. The pre-approval procedure would be available to those who did not fall within the exceptions, or who wanted greater legal certainty.
3.1.3.2.1 Reflections and recommendations at national level
The key actors in the development and implementation of the CT regulatory framework are now states, when they give effect to the Security Council’s demands domestically or adopt additional measures. It is unlikely that new international conventions will be adopted in the near future. The Council’s dynamism in the CT law-making arena is now coupled with binding demands to states to ensure that any measures they adopt comply with international law, including IHL. In view of this, efforts to avoid the tensions between CT measures and IHL at UN and EU level must be combined with a far greater engagement at the national level.
There is cause for cautious optimism as to the willingness of national institutions to find ways of safeguarding humanitarian action when adopting and implementing criminal CT measures. All the new laws that have been identified for the purpose of the present study have included some form of safeguard for humanitarian action, and no instances have been found when efforts to include such measures were unsuccessful. This is positive, and all new laws should include such express safeguards.
Despite this, some problematic CT measures remain on statute books. They were adopted when their adverse impact on humanitarian action was not yet apparent. Such measures will continue to pose problems until they are amended, or courts interpret them in a manner that complies with IHL, as now expressly required by the Security Council.
While there have been very few prosecutions, including under laws that do not include adequate safeguards for humanitarian action, such as the US’s Material Support Statute, these measures continue to cast a long shadow on humanitarian action because some states’ funding agreements require compliance with them.
While there have been very few prosecutions, including under laws that do not include adequate safeguards for humanitarian action, these measures continue to cast a long shadow on humanitarian action because some states’ funding agreements require compliance with them.
The notion of ‘fungibility’ is sometimes raised during discussions of offences of support to terrorism. It is important to understand its proper role in such offences. The theory of fungibility is that support provided to a terrorist group for activities that are not unlawful ‘frees up’ resources that would have been used for such lawful purposes, and allows them to be put to violent ends. Fungibility forms part of the legal rationale underpinning some of the domestic crimes that prohibit broader forms of support to a group, rather than just to the commission of a terrorist act, including, most notably, the US Material Support Statute. It is important to bear in mind that fungibility is the rationale that underlies the offences. It does not play a role beyond this. Once the type of support that is criminalized has been set out in legislation, notions of fungibility do not operate implicitly to expand the crimes.
What lessons can be drawn from the engagement with governments and parliaments that has led to the adoption of safeguards in national legislation?
As far as governments are concerned, while there is an increasing awareness of the tensions between CT measures and humanitarian action, different ministries have different priorities in this area, and, consequently, differing degrees of willingness to find solutions. Ministries of foreign affairs and development departments are more likely to have a deeper understanding of the issues and familiarity with the humanitarian sector, so are likely to be looking for solutions. Other ministries, such as those of home affairs or of justice, come to the issue from a national security perspective, and Treasuries may be concerned about compliance with FATF terrorist financing recommendations. Their positions may not all carry the same weight. Which part of government is in ‘the lead’ in the drafting of legislation also plays a significant role.
The most frequent concern among government departments and members of parliament is that safeguards will be abused. There are two aspects to this apprehension, which tend to be conflated. The first is uncertainty as to the criteria for determining what constitutes a ‘humanitarian organization’ that would benefit from any exception. The second are fears about abuse of this ‘status’. Both can be addressed relatively easily. Indicative criteria to determine which organizations fall within the scope of an exception can be drawn up on the basis of IHL and humanitarian principles. These can inform the interpretation of relevant laws by means of explanatory statements.
Whether an exception has been abused in a particular circumstance is something that must be established as a matter of fact in each case. It is a concern that is frequently raised, not least because a number of the foreign fighters investigated upon their return from Syria claimed that they had been providing humanitarian assistance. However, in none of the cases prosecuted to date were the defendants actually staff of humanitarian organizations. Nonetheless, these cases colour public perceptions. When advocating for the inclusion of exceptions it is essential that the significant measures taken by the humanitarian sector to ensure that their operations are not abused are highlighted. Humanitarian organizations can wrongly assume that interlocutors are familiar with their due diligence practices.
Allaying reticence related to perceived non-compliance with FATF recommendations is more complicated. While ministries of foreign affairs may be willing to accept that some funds or other assets may reach designated groups if this is inevitable in order to carry out humanitarian operations, Treasuries may push for a ‘zero-risk approach’, in the belief that only this will meet FATF standards. This is not inevitably the case. In the Netherlands, for example, it has been the ministry of finance that has been the instigator of multi-stakeholder dialogues to find solutions. FATF is instrumental in shaping perceptions. It is committed to finding ways of mitigating the unintended consequences of CT measures, as shown by the recent establishment of a work stream on this topic.
In terms of process, while in most of the instances when states have included safeguards, these were included during parliamentary review of draft legislation, it would of course be preferable if the safeguards were already included by the government when it proposes legislation. This can avoid a more ‘confrontational’ engagement in parliament that could lead to the politicization of the issue. Contributing to draft legislation at an earlier stage of the process requires an ongoing dialogue between the different stakeholders within government and outside. It also offers an opportunity for a more in-depth dialogue on the challenges faced by humanitarian actors and the due diligence measures they adopt on the one hand, and states’ concerns on the other.
That said, if draft legislation proposed by government does not include safeguards, engagement with parliament is key. It was at this stage of the legislative process that exceptions were included in legislation in Australia, Switzerland and the UK, and where dynamic dialogue is currently taking place in the Netherlands. And it was the European Parliament that included the recital excluding humanitarian action from the scope of the EU 2017 CT directive. Opportunities to provide expert comment in the legislative process must be seized – both to enhance understanding of the legal framework and to share immediate operational experience.
Terrorism can be an emotive topic in parliaments. It should not be assumed that members of parliament understand the contexts and manner in which humanitarian operations are conducted, how CT measures can affect this, or the extensive measures that humanitarian actors take to avoid diversion and abuse.
There is an enduring need to enhance the familiarity of parliamentarians, prosecutors and members of the judiciary with IHL, including in particular those elements that interplay with the CT measures they are adopting and enforcing. Some resources already exist; and these materials need to be coupled with dissemination initiatives.
Finally, in view of the frequency with which questions of IHL are coming before domestic courts, judicial studies courses should include modules on this topic.
3.2 Sanctions
A number of actors can impose sanctions, starting with the UN Security Council, which, acting under Chapter VII of the UN Charter, adopts sanctions that are binding on all states. Regional intergovernmental organizations, most notably the EU, may adopt ‘autonomous’ sanctions. These can build upon Security Council measures by adding restrictions or designating additional persons, or may apply in situations in relation to which the Security Council has not adopted sanctions – like the EU sanctions in relation to Syria, the Ukraine and Myanmar.
Security Council and EU sanctions are implemented by states. It is states that adopt the necessary laws and measures domestically, grant licences or authorizations where this is foreseen, and enforce the sanctions. States may also adopt autonomous sanctions in addition to those adopted by intergovernmental organizations binding on them. This section focuses on UN and EU sanctions, but includes a short subsection suggesting how states could give effect to these measures domestically.
CT sanctions are imposed against groups designated as terrorist by the Security Council, relevant regional intergovernmental organizations or individual states. Among the various restrictions in sanctions, it is financial sanctions that cause tensions with humanitarian action, as they preclude making funds available directly or indirectly to such groups.
Similar challenges to humanitarian action may be raised by country-specific sanctions imposed for other objectives, such as ending conflicts or protecting civilians in relation to specific countries. Unilateral sanctions adopted by some states may be broader in scope and may preclude various forms of support to the government of the state in question, prohibiting the provision of assets and support to ministries and departments responsible for meeting basic needs, such as health and education, unless specifically authorized.
But if they do not include adequate safeguards for humanitarian action, sanctions can continue to have unintended consequences for the most vulnerable sectors of civilian populations: those reliant on humanitarian action.
The devastating impact of comprehensive economic sanctions on Iraq in the 1990s prompted the Security Council to introduce targeted sanctions directed at the leaders responsible for the policies the sanctions aimed to change, their supporters, and specific economic sectors that support those policies. Like the Security Council, the EU strives to impose targeted measures, that have minimum adverse consequences for those not responsible for the policies they seek to change. This shift has significantly alleviated the indiscriminate effect of sanctions, but if they do not include adequate safeguards for humanitarian action, sanctions can continue to have unintended consequences for the most vulnerable sectors of civilian populations: those reliant on humanitarian action.
Sanctions pose a greater risk of liability than criminal CT measures for humanitarian actors. Sanctions are violated if, absent an exception or exemption, relevant assets are made available directly or indirectly to designated persons or groups. There is no need that they be used for the commission of a terrorist or otherwise illegal act. Moreover, the mental element required for a violation of sanctions is low. No intent to support the illegal activities of the listed entity is required; it is sufficient that a natural or legal person violates the relevant prohibitions.
Sanctions also adversely impact humanitarian action by their cascading effects. Banks, insurers and other service and commodity providers have curtailed the services they provide to humanitarian actors for fear of violating the prohibition on making assets or services available to designated groups indirectly. In addition, as highlighted by the US’s fortunately short-lived designation of the Houthis in Yemen in early 2021, financial sanctions against groups that are in control of territory also pose a very live threat of direct liability for commercial actors. The Houthis control the main port of entry for Yemen’s commercial imports in a country that imports 90 per cent of its food and where the population is on the brink of starvation. Fears on the part of commodity suppliers and other private actors involved in the supply chain of exposing themselves to the risk of liability would have led to a shortfall in the supply of food and other essential commodities that humanitarian action could not have made up for.
Tensions between sanctions and humanitarian action can be reduced by the inclusion of safeguards. These can take the form of exceptions, with the effect that the prohibitions do not apply to particular humanitarian actors or activities from the outset; or exemptions – referred to as ‘derogations’ in EU measures – that permit the authorization of activities that would otherwise fall within the scope of the prohibitions.
3.2.1 CT sanctions
CT sanctions impose a number of restrictions on designated persons or groups, or on transactions with them. Typically, these include travel bans, prohibitions on transfers of weapons, and financial sanctions. In addition to freezing the assets of designated persons or groups, financial sanctions prohibit making funds, financial assets or economic resources available directly or indirectly to them. It is these prohibitions that pose the greatest risk of liability for humanitarian actors.
The Security Council has imposed CT financial sanctions in two ways: first, by establishing a specific sanctions regime on individuals and groups affiliated with ISIL (Da’esh)/Al-Qaeda, and, second, by requiring member states to impose similar sanctions on other terrorist groups.
3.2.1.1 ISIL (Da’esh)/Al-Qaeda sanctions
This sanctions regime, established by SCR 1267 (1999), includes the standard prohibition on making funds, financial assets or economic resources available directly or indirectly to designated individuals or groups. At present it does not include an express safeguard – exception or exemption – for humanitarian action. The problems that its absence pose to humanitarian action have been flagged, and possible options for resolving them discussed, including at meetings bringing together the different stakeholders. To date, Council members have not proposed amending the regime to include such a safeguard, so it would be misleading to imply that such proposals have been rejected. Indeed, possibilities for amendments are currently being considered in view of the renewal of the 1267 sanctions regime at the end of 2021.
Under the 1267 sanctions regime, it is the Security Council that designates individuals and groups on the basis of requests from member states. At present (June 2021) the list includes 261 individuals and 89 entities. As far as humanitarian action is concerned, it is the designation of groups rather than individuals that causes problems, particularly when they control areas with populations in need of assistance. A number of such groups are currently designated under the 1267 sanctions, including Al-Qaeda in the Arabian Peninsula and Levant-Yemen in Yemen, ISIL affiliates in Syria and, until recently, Iraq, and Boko Haram in Nigeria. Problems can also arise when designated groups have significant presence, albeit without exercising control of territory, in areas where humanitarian actors conduct operations, as is the case for various Al-Qaeda affiliates in the Sahel, for example.
3.2.1.2 CT financial sanctions pursuant to SCR 1373
The second way the Security Council has imposed CT sanctions is more indirect. The first in the list of measures that SCR 1373 (2001) required states to take was to:
Essentially this requires states to impose financial sanctions on persons or groups involved in the commission of terrorist acts. Unlike the SCR 1267 regime, SCR 1373 does not include a list of designated persons or groups. It is left to states and relevant regional intergovernmental organizations, such as the EU, to develop their own lists.
This has led to a challenging lack of uniformity as different states have designated different entities, or particular parts of groups. Hamas can be taken as an example relevant to humanitarian action, as it exercises control over two million people in need of humanitarian assistance in Gaza. The EU has designated Hamas, thus requiring all EU member states to designate Hamas in their national measures. Other states, such as New Zealand, have designated only Hamas’s military wing. Others still, such as Norway and Switzerland, have not designated either.
The lists of designated entities elaborated by states implementing SCR 1373 include a number of groups that exercise control over or have a significant presence in areas where humanitarian operations are being conducted. For example, the EU list includes Hamas, Hezbollah, the Kurdistan Workers’ Party (PKK), and, until 2016, FARC, the Revolutionary Armed Forces of Colombia. In all these instances, there is a risk that incidental payments made or assets provided in the course of humanitarian activities fall within the scope of the prohibitions in the financial sanctions.
As noted above, SCR 1373 did not include safeguards for humanitarian activities. But as the series of CT resolutions has evolved, so has the strength of the language with which the Security Council has called upon states to ensure that the measures they take to combat terrorism comply with their obligations under international law, including IHL. This includes the Council’s binding demand in SCR 2462 (2019) that ‘all measures taken to counter terrorism […] comply with [member states’] obligations under international law, including international humanitarian law [..]’. The measures referred to also include the financial sanctions adopted by the Security Council and implemented by states.
3.2.2 Country-specific sanctions
Restrictions and prohibitions in country-specific sanctions also raise challenges for humanitarian action. Financial sanctions imposed against groups that control territory or have a significant presence in areas where humanitarian operations are being conducted raise precisely the same problems as do the CT sanctions. Examples in UN sanctions include the Allied Democratic Forces and the Forces Démocratiques de Liberation du Rwanda, both active in the Democratic Republic of the Congo (DRC). More significantly, the EU’s sanctions in relation to Ukraine designate the ‘Lugansk People’s Republic’ and the ‘Donetsk People’s Republic’.
Financial sanctions imposed on commercial entities can also affect humanitarian action. The EU sanctions relating to Syria, for example, designate Syriatel, the only telecommunications company that provides reliable mobile phone coverage in remote parts of the country where humanitarian organizations operate. It also provides the most reliable internet coverage, which was necessary for online learning during recent lockdowns during the COVID-19 pandemic. Although they are not prohibited outright, transactions with Syriatel for the sole purpose of providing humanitarian relief or assistance to the civilian population in Syria must be authorized by EU member states.
Other restrictions in sanctions can also affect humanitarian action. Restrictions on imports of dual-use items may cover items or materials needed for operations in areas such as water purification, agriculture and even medical response. Arms embargoes may include equipment used for humanitarian demining. Prohibitions on trade in particular commodities, like petroleum products in the EU Syria sanctions as originally adopted, pose very evident impediments to operations.
What is prohibited, what is permissible either pursuant to an exception or to a general or specific authorization, and which actors and activities can benefit from such safeguards vary from regime to regime. There is no consistency, even among sanctions adopted by the same body to achieve similar objectives in similar situations. For example, EU autonomous sanctions have not been consistent in the inclusion of exceptions or derogations for humanitarian action in financial sanctions adopted in relation to comparable contexts. While the Syria and Nicaragua measures include a derogation, the Burundi, Guinea, Myanmar/Burma, and Venezuela financial sanctions do not, even though humanitarian programmes are also being implemented there. The reasons for this are unclear, as the measures raise the same challenges for humanitarian action. Safeguards have been included – or not – apparently in an ad hoc manner, not guided by what is actually necessary in view of the nature of the restrictions.
What is prohibited, what is permissible either pursuant to an exception or to a general or specific authorization, and which actors and activities can benefit from such safeguards vary from regime to regime.
At present only one UN Security Council sanctions regime includes an express exception for humanitarian action: that for Somalia. Al-Shabaab was designated in April 2010, and SCR 1916 (2010) excluded from the scope of the financial sanctions: […] the payment of funds, other financial assets or economic resources necessary to ensure the timely delivery of urgently needed humanitarian assistance in Somalia, by the United Nations, its specialized agencies or programmes, humanitarian organizations having observer status with the United Nations General Assembly that provide humanitarian assistance, or their implementing partners.
The sanctions regimes for the Democratic People’s Republic of Korea (DPRK) and Yemen take a different approach. They foresee the possibility of applications being made to the Security Council for exemptions on a case-by-case basis from the relevant restrictions to conduct humanitarian action. In both cases the number of organizations that would have to apply for exemptions is low: only a very small number are operating in the DPRK, and the individuals and groups designated under the Yemen sanctions do not have significant points of contact with humanitarian operations. In view of this, the system of requiring the Council to issue authorizations is workable, even though the significant delays that arise in considering applications for exemptions under the DPRK sanctions reveal its limitations. This approach would not be workable in relation to sanctions regimes where a greater number of humanitarian actors would be applying for exemptions.
As in the case of the CT measures discussed above in this section, in recent years humanitarian organizations have made important progress in raising awareness of the adverse impact of sanctions. This has led a number of elected members of the Security Council to champion the issue and push for solutions. Belgium and Germany did so during their 2019–2020 Council membership and Ireland, Mexico and Norway have assumed this role from 2021. In addition, France, a permanent Council member, has expressed its commitment to promote solutions to the issue.
The endeavours of these Security Council members are beginning to bear fruit. The most recent renewals of country-specific sanctions by the Council have included demands that measures taken by member states to give effect to them comply with international law; they follow the binding demand in SCR 2462 (2019) on terrorist financing, discussed in Section 3.1.2.1 above.
Thus, in June 2021, in the resolution that renewed the DRC sanctions, adopted by unanimous vote, the Council included a binding operative paragraph
This was coupled with a preambular paragraph
These paragraphs were replicated in the resolution adopted a month later renewing the Central African Republic (CAR) sanctions. On this occasion both were included as preambular paragraphs, but this was due to divergences of views among Council members – including the P5 – in relation to the scope of the arms embargo, that led the penholder to limit the ‘reopening’ of the operative parts of the resolution as much as possible.
Although these are not express exceptions for humanitarian action, their inclusion is a significant development, and a strong nudge to member states for inclusion of relevant safeguards when giving effect to the UN sanctions domestically.
3.2.3 Reflections and recommendations
In recent years progress has been made in raising awareness of the challenges that sanctions pose to humanitarian action. The intergovernmental organizations that impose the sanctions – particularly the EU, but also some members of the Security Council – have acknowledged the need to minimize their adverse, or ‘unintended’, impact. And there have been some encouraging changes of practice at EU level, evidenced most clearly in the progressive modification of the restrictions on the purchase of petroleum products in the Syria sanctions.
Despite this, current arrangements at global, regional and national level remain inadequate. Each step of the process for the adoption and implementation of sanctions must be improved, from ensuring that appropriate safeguards are included in the instruments imposing the restrictions, to rendering national licensing arrangements more efficient, when this is the approach for safeguarding humanitarian action.
Ideally, from the perspective of humanitarian actors, all sanctions restrictions would include express exceptions for humanitarian action. In parallel to striving for this, at the present stage of the debate it is likely that solutions will have to be sought in a more calibrated manner. Progress requires two things.
First, rather than looking for a single one-fits-all solution, the issue must be addressed on a restriction-by-restriction basis. Second, for this to happen, continuous dialogue is required between states and humanitarian actors at every step of the process.
3.2.3.1 A more granular analysis of the points of friction and more tailored solutions
To make progress, it is necessary to find an approach that addresses the objectives of both sets of stakeholders: humanitarian actors’ desire to reduce the adverse impact of sanctions on humanitarian action, and states’ objectives when imposing the sanctions as well as concerns about the abuse of safeguards.
The adverse impact of sanctions, in terms of numbers of affected humanitarian actors, and the extent of impact varies with the nature of the restriction. This, in turn, determines which type of safeguard is most appropriate. The points of friction between sanctions and humanitarian action must be considered sanctions regime by sanctions regime, restriction by restriction, and context by context. Precisely what do sanctions restrict, and how do the restrictions impact humanitarian action in a particular context?
By way of example, fewer humanitarian actors are likely to be adversely affected by restrictions on imports of dual-use items. These will impact only the small number of organizations that carry out activities requiring the restricted items, such as water treatment and purification activities. In such cases, an approach based on exemptions, whereby the actors that require such products apply for licences, may be a workable solution, provided national systems for issuing licences are efficient. There needs to be clarity about procedures, applications must be reviewed in a timely manner, and consideration must be given to modalities that would facilitate the granting of authorizations, such as general licences.
This said, there may be situations where restrictions on the import of dual-use items affect a broader number of humanitarian actors. For example, restrictions on imports of chemical substances that include disinfectants necessary for preventing the spread of the COVID-19 virus affect the entire humanitarian community. In such cases, safeguards based on exemptions would no longer be adequate, and would have to be replaced by exceptions – or at least general licences when these are a possibility.
In contrast, other types of commodity-related restrictions can affect the entire humanitarian community operating in a particular context, and in relation to these too, an approach based on exemptions would not be workable. This was the case, for example, with the prohibition on purchasing petroleum products in the EU sanctions relating to Syria. Requiring each organization to apply for an exemption was not a feasible approach, and the restrictions were progressively refined. The approach that was ultimately adopted in 2016 – which actors were excepted, and which had to apply for exemptions from national authorities, as well as ways in which reassurance could be provided to the EU on how the exception was actually used – is set out in the Annex to this paper.
The most problematic restrictions are financial sanctions that prohibit making funds or other assets available directly or indirectly to designated groups. These affect the entire humanitarian community operating where such groups are present. In view of the number of affected actors, safeguarding humanitarian action by means of a licensing system is simply not a sufficiently swift and efficient approach. Moreover, some banks consider the fact humanitarian organizations have to obtain licences as an indication that the latter are operating at the ‘margins of legality’. Rather than providing reassurance, licences have in fact increased banks’ reservations about providing services to humanitarian actors. In view of this, as far as financial sanctions are concerned, exceptions for humanitarian activities appear to be the only workable solution. As elaborated below, exceptions can be framed in a manner and coupled with oversight arrangements that can allay states’ concerns about the risk of abuse.
The most problematic restrictions are financial sanctions that prohibit making funds or other assets available directly or indirectly to designated groups. These affect the entire humanitarian community operating where such groups are present.
In addition to the nature of the restriction, another key factor influencing the extent of the adverse impact on humanitarian action is the nature of the designated actors. Designation of groups is far more problematic than designation of individuals, even if these are the leaders of the group. And among groups, it is the designation of those that control territory or have a significant presence in areas where humanitarian operations are conducted that has the greatest adverse effect on humanitarian action.
This problem can be addressed in – at least – two ways. One is to encourage states not to impose financial sanctions on groups, and to designate their leadership instead. This is the approach the US took in relation to the designation of the Houthi in Yemen following the change in administration in 2021. The designation of the group was revoked and, since then, new designations have focused on its leaders.
This approach may be an option when the designation of a group serves a political or symbolic purpose of expressing the international community’s disapproval of its policies. In such cases, designation of leaders can have the same effect, coupled with other measures that limit the leaders’ capacity to pursue their problematic policies, such as arms embargoes. However, in some sanctions regimes stemming the flow of funds to groups plays a central role in reaching the policy objective for which sanctions have been imposed. This is particularly the case for CT sanctions; designating only their leaders would not be an option.
A second alternative is to adopt a more tailored approach to the restrictions and safeguards applicable to different designated persons or groups. At present, all persons or groups designated under a particular UN or EU sanctions regime are subject to the same restrictions, and the options for safeguarding humanitarian action are also the same vis-à-vis all designated persons or groups. There is no reason for not adopting more calibrated arrangements. While all designated persons or entities could be subject to the same restrictions, the safeguards for humanitarian action could vary depending on the nature of the group or person. Financial sanctions against groups that have a significant presence where humanitarian action is conducted could be coupled with exceptions for humanitarian action. While in respect of other designated actors – for example commercial companies or individuals or groups that do not have significant presence – the safeguard could take the form of an exemption.
This approach requires – and enhances – a better dialogue between humanitarian actors and the entities imposing sanctions. It would also contribute to rendering sanctions more dynamic and nimble – a long-standing call by experts, and an express objective of the EU’s sanctions policy.
3.2.3.2 Understanding and addressing states’ concerns
To encourage resort to these more tailored approaches, safeguards must be coupled with measures that address states’ concerns. Reservations have been expressed about the introduction of humanitarian safeguards for risk of ‘abuse’, but these concerns have not been articulated with any degree of precision, or substantiated by empirical evidence. Nor is it clear whether the concerns are the same in relation to all types of restrictions in all sanctions regimes. Moreover, there is not a single ‘state position’. Indeed, ministries within the same state often have different views.
Some states demand greater empirical evidence on the adverse impact of sanctions. Progress needs to be made on this front.
Some states are not concerned. In their view, the need to conduct humanitarian operations justifies any incidental benefit that designated entities may draw from these operations, and they are sufficiently reassured by humanitarian actors’ due diligence measures.
Other states are concerned that the safeguards will be used improperly and render the sanctions ineffective. This concern can be met in two ways: ring-fencing which activities and actors should benefit from the safeguards, and specifying measures to be taken to ensure that the actors that fall within safeguards are not abusing them.
While the nature of states’ concerns needs more research, it appears that they relate principally to which humanitarian actors should benefit from the safeguards. Practice to date suggests that finding ways of limiting the humanitarian actors covered by the safeguards provides reassurance and facilitates the inclusion of exceptions.
Useful insights can be drawn from three instances when states included exceptions in international sanctions: the UN flight ban into Taliban-controlled areas, in force from 2000 to 2002; the financial sanctions within the UN sanctions relating to Somalia, in force from 2010 to date; and the prohibition on purchasing oil in the EU’s Syria sanctions, in force from 2012 to date. The Annex to this paper analyses these precedents, comparing the nature of the prohibitions, the actors and activities covered by the exceptions, and any oversight arrangements to ensure the exceptions operated as intended. Four preliminary conclusions can be drawn.
First, states have been willing to include exceptions in measures, such as financial sanctions or prohibitions on the purchase of petroleum products, which are likely to affect a significant number of humanitarian actors and/or significantly impede the humanitarian response in a particular context.
Second, states have adopted a broad and general definition of the activities that fall within exceptions. The Somalia sanctions refer to ‘urgently needed humanitarian assistance’, and the EU Syria sanctions to ‘humanitarian relief’ and ‘humanitarian assistance’.
Third, in both the Somalia and Syria cases, the category of actors benefiting from the exceptions is restricted by reference to their source of funding. The EU example is particularly interesting: the exception is limited to actors that receive institutional funding – i.e. from the EU or member states. It is coupled with an exemption for all other actors carrying out humanitarian activities: this exemption can be granted by member states subject to the conditions that they consider fit. This suggests that the oversight conducted by states and intergovernmental organizations before funding humanitarian activities provides sufficient reassurance. Recognizing that many humanitarian actors, including significant ones like Médécins sans Frontières, do not receive institutional funding, alternative ways were sought for their operations to be safeguarded.
Fourth, reporting can be a further way of addressing concerns and providing reassurance that the exceptions are used as intended. The precise institutional arrangements for such reporting will vary depending on whether it relates to UN sanctions or EU measures. The Security Council can task the Humanitarian Coordinator or the UN mission leader in the context in question to submit the reports. If EU sanctions were to include a reporting requirement, corresponding arrangements would have to be established within the EU system.
So far, this section has focused on understanding and addressing states’ concerns. It should be noted that humanitarian actors do not necessarily have a common position. While all believe that sanctions urgently need to be refined, some have expressed reservations about approaches that require them to apply for authorizations from the Security Council or individual states. They consider that a system that is dependent on the authorization of humanitarian action by a third state is inconsistent with humanitarian principles of independence and impartiality. These organizations consider that exceptions are the only acceptable approach.
3.2.3.3 A more systematic and transparent dialogue
A final conclusion drawn from the examples above is the crucial importance of dialogue and constructive engagement between humanitarian actors and states involved in the imposition and implementation of the sanctions. It was such a dialogue that led to the modification of the EU Syria oil sanctions to mitigate their adverse impact.
Dialogue must take place vis-à-vis all institutions involved in the adoption and implementation of sanctions: the Security Council, the EU and nationally. Although some states participate in both forums – as is the case with EU member states that are also permanent or elected Security Council members – it should not be assumed that discussions among state representatives in one setting are conveyed to their colleagues involved in sanctions discussions in another. Indeed, one of the challenges in advancing the discussions with and within government is the lack of connectivity within different parts of government working on sanctions. The discussions that take place in New York are not necessarily shared with government colleagues working on similar issues at EU level. The disconnect is even more marked when it comes to domestic implementation of sanctions. The dynamics of this dialogue on sanctions, and the actors involved, are different from those involved in the elaboration of criminal CT measures, and parliamentary involvement is extremely limited.
It is a dialogue that must occur at all stages of the process, starting before the adoption of sanctions and continuing throughout their implementation.
3.2.3.3.1 At Security Council level
While the authority for adopting sanctions lies with the Security Council, implementing them is a shared obligation of all member states. All, therefore, have an interest in understanding the problems that they may raise, and in seeing that they do not undermine humanitarian action.
Key to making progress is sharing information on possible problems. This is necessary at every stage: before sanctions are adopted; throughout their implementation; and before they are renewed. The High Level Review of UN Sanctions has recommended that when the Security Council is considering the imposition of sanctions, it should – in consultation with humanitarian agencies and organizations – conduct an assessment of their possible adverse impact on humanitarian action. Once it has imposed sanctions, it should require the panels of experts appointed for each sanctions regime to conduct and report on such impact assessments. For the most part, panels of experts have not addressed this dimension. They tend to be cautious in interpreting their mandates and, unless expressly requested to address a particular aspect of the relevant sanctions regime, are unlikely to do so on their own initiative. Moreover, not all panels of experts include humanitarian experts – for example, the monitoring team for the ISIL/Al-Qaeda sanctions does not.
In any event, information is best presented by a humanitarian actor rather than by sanctions panels of experts for a number of reasons, including greater familiarity with the topic; retaining control of how the issues are presented; and the reluctance of some humanitarian actors to provide information to an entity – the panel of experts – that they perceive as too closely associated with the Security Council.
In the past, the Security Council has required UN humanitarian agencies to carry out assessments and pre-assessments of the humanitarian impact of sanctions. It could task them to carry out such assessments of the narrower question of their impact on humanitarian action.
Alternative approaches should also be explored, including convening an informal forum where humanitarian actors can share information and concerns relating to the impact of sanctions in a manner that is systematic, coordinated and transparent.
Alternative approaches should also be explored, including convening an informal forum where humanitarian actors can share information and concerns relating to the impact of sanctions in a manner that is systematic, at every relevant moment of the process for adoption and review of sanctions, and in relation to every relevant sanctions regime; coordinated, in providing the input from the humanitarian community as a whole; and transparent, reaching all Council members that wish to attend.
Two elements in such a dialogue are key: one (or more) states, whether Council members or not, to ‘champion’ the issue, and host the informal briefings; and a representative of the humanitarian community, to gather all the relevant information and make the presentations. One obvious candidate for doing this is OCHA, the UN Office for the Coordination of Humanitarian Affairs.
Ways should be also sought for bringing information on the adverse impact of sanctions on humanitarian action to the attention of all UN member states more generally. As noted, while it is the Security Council that adopts sanctions, all member states must implement them. Greater awareness of the adverse consequences could lead the broader membership to encourage the Council to include appropriate safeguards for humanitarian action.
3.2.3.3.2 At EU level
A similar dialogue should also be established at EU level. The EU plays a significant role in implementing Security Council sanctions, but it also adopts autonomous sanctions that must be implemented by member states – many of which are key donors to humanitarian action and are therefore, presumably, both aware of and responsive to the challenges faced by humanitarian actors. As noted, recent EU practice in relation to country-specific sanctions and CT measures suggests that the EU is aware of the tensions and is willing to take measures to address them. In addition to establishing good practices for its member states, the EU’s approach can serve as a positive example for the Security Council and non-member states.
Key to maintaining this positive momentum is finding or creating appropriate institutional arrangements within the EU system for dialogue.
The EU and its member states have expressed their commitment to ensuring that restrictive measures are targeted, and to minimizing the adverse consequences for those not responsible for the policies and actions that the measures seek to change. The impact of restrictive measures on humanitarian action is precisely one such ‘adverse consequence’. As part of the annual review that is required for EU autonomous sanctions, their impact on humanitarian action should be one of the factors for consideration.
In January 2021 the European Commission issued a Communication affirming its intention to improve the design and implementation of EU sanctions, including their impact on humanitarian action. As part of this endeavour, it will establish a member state expert group to which NGOs may be invited as appropriate to ensure that humanitarian aspects are considered.
EU member states, relevant parts of the European Commission, and humanitarian actors should explore ways for humanitarian actors to regularly brief RELEX before the adoption of sanctions and during their implementation ahead of their renewal. And consideration should be given to the establishment of an informal arrangement along the lines of that discussed in relation to Security Council sanctions, to ensure systematic, coordinated and transparent provision of information of the impact of sanctions on humanitarian action to EU member states.
During the COVID-19 pandemic the European Commission issued a series of communications explaining, in question-and-answer format, how EU sanctions applied in various contexts. Some of the questions were collected during the informal dialogue between the Commission and humanitarian actors, and addressed the most pressing issues. This is extremely helpful guidance, and more should follow. A central question that would still benefit from clarification is how to interpret the prohibition on making funds or assets available indirectly to designated persons or entities.
3.2.3.4 Domestic implementation of sanctions
It is beyond the scope of the present paper to consider how states have given effect to UN and EU sanctions domestically, or to analyse additional autonomous sanctions they may have imposed. Instead, the paper limits itself to considering how, when implementing UN and EU sanctions, states could safeguard humanitarian action.
Including such safeguards is a way to give effect to the understanding – implicit in UN sanctions and explicitly stated for EU measures – that sanctions must comply with international law; and to the Security Council’s demand that states ensure that the measures they take to implement UN sanctions comply with their obligations under international law, including IHL.
With regard to IHL and humanitarian action more specifically, the 2020 European Commission Guidance clarifying how EU sanctions apply to humanitarian action to respond to the COVID-19 pandemic expressly noted that ‘[…] in accordance with International Humanitarian Law, where no other option is available, the provision of humanitarian aid should not be prevented by EU restrictive measures’.
States’ own obligations under IHL are an additional argument in favour of implementing sanctions in a manner that in a way that does not conflict with IHL.
How can this be done in practice? Most clearly by including an express exception for humanitarian action in the national regulations giving effect to the international sanctions. Research for the present paper did not extend to a review of domestic measures for implementing sanctions, so it is not possible to comment on whether any states have done so. The letter of the Swiss Federal Act on the Implementation of International Sanctions seems at least to open the door to such an approach, but it does not appear to have been resorted to in practice.
Alternatively, if this is possible under national law, a similar result could be achieved by issuing general licences for specific sanctions regimes, excluding conduct and transactions carried out in the course of humanitarian activities from the scope of any restrictions in sanctions. This is an avenue that the UK should explore as it is establishing its independent post-Brexit sanctions framework.
A further approach is more indirect: not investigating or taking other enforcement action with regard to behaviour that could amount to a violation of sanctions when it occurs in the course of humanitarian operations. This might in fact be the way in which many states have addressed the issue in practice. Such possible violations were simply not a focus of their sanctions enforcement activities.
While it means that humanitarian action is not penalized, this approach has a number of drawbacks. Support provided or transactions conducted in the course of humanitarian activities still violate the letter of the law, with significant reverberating effects. Banks and commercial actors will remain reluctant to provide services. It will also be irrelevant as far as requirements to comply with sanctions in funding agreements are concerned.
3.2.4 Interpreting the designation of entities that exercise governance functions
Sanctions designations raise additional issues when they target persons or groups that play a role in governance – either in formal government structures or as entities that exercise government-like functions or de facto control. At least three different scenarios need to be considered.
3.2.4.1 What is the effect of the designation of a minister or of the leader of a group?
This is the question that arises most frequently. There is a distinction between the individuals and the ministries they head. The prohibition on providing funds or other assets applies to the designated person. Issues would only arise if the designated minister appropriated funds provided to the ministry, either for their personal benefit or to undermine the policy objectives for which the sanctions were imposed. The effect of the misappropriation would not be to bring the ministry within the scope of the designation. Instead, the issue would have to be addressed from a prevention of diversion perspective.
By way of recent example, in late 2020 the EU designated a number of ministers on the ground that they share ‘responsibility for the Syrian regime’s violent repression against the civilian population’. Those designated have included both the Minister for Education and the Minister for Health. There was no suggestion that these designations, and the consequent prohibitions on making funds or other assets available to the ministers, meant that it was no longer possible to provide support to the ministries they headed.
The same holds true when leaders of groups have been designated but the groups have not. In such circumstances, it is not prohibited to provide assets to the group or non-designated members. Due diligence should be exercised to ensure the designated leaders do not profit personally from such support.
3.2.4.2 What is the effect of the designation of a political party?
This issue arises most prominently in relation to Hamas’s role in Gaza. It is also relevant where other designated political parties play a role in government, like in the case of Hezbollah in Lebanon.
Taking the case of the designation of Hamas under EU CT sanctions as an example, the starting point is that the designated entity is a political party, with an armed wing, which has been exercising executive authority over Gaza since 2007.
The restrictions in the EU sanctions prohibit making available funds and other relevant assets available to the political party. There is a distinction as a matter of constitutional and administrative law between a political party and civil administration structures such as ministries and departments. This distinction continues to exist even when a party becomes the ‘governing party’ or party in power. This difference has been blurred in relation to Hamas, including because of the tendency to refer to Hamas as the ‘de facto authorities in Gaza’. There is no basis in law for this expression, and it is misleading and counterproductive, as it can be interpreted as suggesting that Hamas is the civil administration structure. This is not the case. EU financial sanctions apply to Hamas the political party, not to the structures of administration in Gaza.
Equating Hamas with the civil administration of Gaza would turn targeted financial sanctions into measures that would have a far broader impact on an entire civilian population, similar to the overly broad comprehensive sanctions that the international community abandoned in the 1990s. The EU’s Basic Principles on the Use of Restrictive Measures require sanctions to be ‘targeted in a way that has maximum impact on those whose behaviour we want to influence. Targeting should reduce to the maximum extent possible any adverse humanitarian effects or unintended consequences for persons not targeted or neighbouring countries’. Interpreting the designation of Hamas in a manner that precluded transactions with civil administration structures in Gaza would risk severely impeding humanitarian action.
The EU does not adopt comprehensive sanctions. Instead, it adopts measures prohibiting transactions with individuals or specific ministries that it considers particularly responsible for the behaviour the sanctions aim to end and/or whose activities the sanctions aim to impair. In Syria, for example, the EU has imposed sanctions against the Ministries of Defence and of the Interior, as ‘government branch[es] directly involved in repression’.
This indicates that the EU avoids broad designations of governments as a whole. The EU sanctions on Hamas should be interpreted so as not to apply to the entire civil administration of Gaza, but just to the political party.
Ministries, departments and other parts of the administration do not form part of Hamas and, consequently, do not fall within the scope of the sanctions. If it were demonstrated that funds or other assets were transferred from civil administration structures to Hamas, this would have to be addressed from a risk of diversion perspective.
Another example is Hezbollah in Lebanon. EU CT sanctions designate only ‘Hizballah Military Wing’. However, in recent years a number of EU member states, including Latvia, Slovenia and the UK when it still was in the EU, have expanded the scope of their national designations to Hezbollah more generally.
This is the case even though, as expressly noted in the UK’s listing instrument, ‘Hizballah, as a political entity in Lebanon has won votes in legitimate elections and forms part of the Lebanese Government’. At present, there are two Hezbollah-appointed minsters in the Lebanese government, one of whom heads the Health Ministry. There is no suggestion that the designation of Hezbollah should preclude transactions with or support to the government of Lebanon and its ministries. Indeed, the UK (for example) is currently funding various projects that support the Lebanese government, including one with a Hezbollah-headed ministry.
Similarly, the US designated Hezbollah as a whole as a Foreign Terrorist Organization in 1997. Despite this, the US Agency for International Development (USAID) and the Bureaux of Population, Refugees, and Migration (PRM) and for Humanitarian Assistance (BHA) fund various projects that provide support to the Lebanese government, including the Hezbollah-led Ministry of Health.
These practices provide further support for an approach that draws a distinction between the designated political party and structures of civil administration.
3.2.4.3 Designation of groups exercising government-like functions or de facto control
The preceding paragraphs considered the effect of designation of a party that plays a role in the formal structures of government. Situations may also arise where a designated group controls an area and exercises government-like functions therein. This was the case, for example, with the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka, and most recently, the ‘Lugansk People’s Republic’ and the ‘Donetsk People’s Republic’, both in Eastern Ukraine.
How should prohibitions in financial sanctions on making funds or assets available directly or indirectly to such groups be interpreted? Ideally, such measures should be accompanied by broad exceptions covering humanitarian action, like those issued by the US during the very brief period when the Houthis were designated in January 2021.
Absent such express safeguards, and so as to minimize the effect of sanctions on the populations under the group’s control, the restrictions should not be interpreted so as to prevent the group from providing basic services such as healthcare and education to the population under its control, or preventing humanitarian action to assist it in these areas.
