The legal framework is complex and constantly evolving. Although legal proceedings against humanitarian actors are rare, the cascading effects of CT measures and sanctions are significant.
Although the actual impact of sanctions and CT measures on humanitarian action remains challenging to quantify, the problems they pose to humanitarian actors’ capacity to respond to need, in accordance with humanitarian principles and as foreseen by IHL, are very real. Legal proceedings against humanitarian actors for violations of CT measures or sanctions remain rare, but the cascading effects of those measures become ever more significant, particularly as manifested in restrictions in funding agreements and in the reluctance of commercial actors to provide goods and services.
In many contexts it is funding agreements that cause the greatest problems; they have led some humanitarian organizations to avoid conducting operations in areas where designated groups are active, despite significant needs. Funding agreements can impose more onerous restrictions than the very sanctions and CT measures with which they purport to promote compliance. Even if prosecutors and sanctions enforcement bodies do not focus on humanitarian operations, the constricting effect remains once the measures are translated into contractual obligations.
The COVID-19 pandemic has not changed the situation. UN and EU restrictions and designations have not changed; and the US only adopted General Licences authorizing certain transactions and activities for COVID-19 prevention, diagnosis or treatment in July 2021 – more than a year into the pandemic. The need to respond to the emergency has led to increased scrutiny of the impact of sanctions. The EU has taken some useful steps to clarify the law and to engage with humanitarian actors.
The recommendations set out in the different chapters of this research paper will not be repeated here. There are, however, a few themes that they have in common.
The legal framework is complex and constantly evolving. There is a lack of clarity as to precisely how the law applies to humanitarian action, and this both gives rise to some myths and also lies at the heart of ‘overcompliance’ by humanitarian organizations, donors, and the commercial sector.
Express safeguards for humanitarian action provide clarity and reassurance. They are the preferable approach in both international and domestic measures. National legislators must ensure that they comply with requirements in international measures to respect IHL. As outlined in this paper, there are good grounds for arguing that, even in the absence of express safeguards, CT measures and sanctions can be interpreted to avoid conflict with IHL, including the rules regulating humanitarian relief operations and medical assistance.
States have an interest in safeguarding humanitarian action and in ensuring that the funds they provide to humanitarian actors are used efficiently, to assist the neediest and in accordance with humanitarian principles. They also have an interest in preventing and suppressing terrorism. These interests should not be regarded as being in conflict with each other. But to ensure that each of these interests is properly represented, more attention needs to be given to procedures and institutional arrangements that will lead to governments operating in a coherent manner. The same goes for intergovernmental organizations.
At national level, departments responsible for administering foreign aid should be participating in government discussions on the adoption of international sanctions and CT measures to ensure the inclusion of adequate safeguards. The same applies to the domestic implementation of these measures. These departments should also ensure that the agreements they conclude with humanitarian actors reflect the safeguard clauses and do not include provisions that preclude a principled response.
In the forums where international sanctions and CT measures are adopted the same approach should be followed. In the UN, a key challenge is the number of different bodies that have a role to play in elaborating the CT regulatory framework. The institutional architecture is complex, and the various bodies operate in a siloed manner. The positions that are developed are not necessarily consistent. Even within the Security Council, sanctions bodies are apparently of the view that binding Security Council decisions in the field of CT are not relevant to sanctions. These siloes are often replicated within states’ missions, between missions and capital, and between teams working on similar topics at the UN and the EU.
This regrettable situation prevents the development of coherent approaches and leads to loss of institutional memory, making progress difficult. It is exacerbated by the technical nature of discussions, and the fact that subject-matter experts are often in capitals rather than in the permanent missions.
This can be contrasted with the FATF, where it has been possible to make significant progress in refining recommendations to avoid unwarranted impact on humanitarian action. One reason for this is FATF’s simple architecture: a single secretariat and the fact that member states’ subject-matter experts are directly involved in its work.
The EU has repeatedly demonstrated its willingness to find ways to address the adverse impact on humanitarian action of the sanctions and criminal CT measures that it adopts. The EU can play an important role in developing workable solutions for its institutions and 27 member states that can also serve as precedents for the UN.
To make progress, dialogue among the key stakeholders is crucial, at every stage prior to the adoption of international measures and domestic legislation, and throughout their implementation. Humanitarian organizations have a significant role in highlighting problems and pushing for solutions, and their sustained engagement is essential. Few such organizations, however, have dedicated staff to engage in policy discussions in a systematic manner.
Commercial actors should be engaged. At present there are no incentives – regulatory or other – to balance the risk of providing services to them against the public policy interest in doing so. A small number of states have established informal tripartite dialogues between government, humanitarian actors and banks, but their work still has to bear fruit. While important, as far as the banking sector is concerned international solutions must be sought. Dialogue with other sectors has still to start.
Finally, now the UK has left the EU and is setting its own sanctions strategy, it must recognize the importance of IHL and humanitarian principles as it shapes the processes for adopting sanctions policies and develops the regulatory framework. Various government departments have a role, but those entrusted with the implementation of sanctions are not necessarily those which should be responsible for setting the underlying policies. Government lawyers must be involved, to ensure compliance with international law, including IHL: so must government humanitarian experts. The merger of the Foreign and Commonwealth Office and the Department for International Development into the Foreign, Commonwealth and Development Office (FCDO) in September 2020 is an opportunity for better injection of the humanitarian perspective into the government’s decision-making process, and for establishing a framework for dialogue with humanitarian actors. This is also an opportunity for exploring new ways of addressing the adverse impact of sanctions, context by context, whether by the introduction of exceptions, or by means of general licences for humanitarian action.
The impact of CT measures and country-specific sanctions on humanitarian action has been with us for too long. It has been highlighted again by the COVID-19 pandemic. There are ways in which it can be addressed, and progress is overdue.