Introduction
Recent years have seen the multiplication of armed conflicts involving non-State armed groups designated as terrorist by States and international organizations. The latter have reacted to this situation by tightening existing counterterrorism (CT) measures and introducing new ones, as well as by conducting an increasing number of CT operations, including extraterritorially. States and international organizations have also increasingly resorted to sanctions – taken at the international, regional and domestic levels – as responsive measures aimed at changing the behaviour of individuals and entities, at times extending to State authorities who are perceived as potentially endangering the sanctioning authority's political and/or security interests.
When faced with terrorism, there is no doubt that it is legitimate and necessary for States and international organizations to take responsive action in order to ensure their security and, in the case of States, the security of those subject to their jurisdiction, as well as to restore and maintain international peace and security. Terrorism negates the basic principle of humanity, and goes against the underlying principles and core objectives of international humanitarian law (IHL).
Efforts to combat terrorism may take various forms. CT measures have been passed, and CT operations have been conducted by States’ armed forces – alone, through coalitions, or under the umbrella of an international organization – using military means and methods of warfare against non-State armed groups in the Middle East, South and Southeast Asia, the Sahel, the Lake Chad Basin and Eastern Africa, for instance. Combating terrorism may indeed take the form of armed conflict. Some groups are sufficiently well armed and resourced, and show sufficient levels of organization, to carry out sustained and concerted armed operations, thus triggering an escalation of violence that might be difficult for relevant authorities to curb. These developments and the constant adaptation of CT measures to the evolving threat posed by international terrorism have led to an increased focus on the interaction between CT regulations and IHL, both being concomitantly applicable in such contexts, thus raising a host of legal issues.
The CT discourse in both domestic and international fora has not facilitated answers to the questions that this interaction raises. On the contrary, it has significantly contributed to the blurring of lines between armed conflict and terrorism, with potentially adverse effects on IHL and on principled humanitarian action.
In this regard, it is important to clarify the interactions between armed conflict and terrorism, and between IHL and the CT/sanctions legal framework, and to address the misconceptions surrounding the relationship between armed conflict and terrorism. There is a need to clear up the recurrent misunderstanding that IHL is not applicable to the fight against terrorism, or that it does not allow an efficient response to threats emanating from individuals or armed groups designated as terrorist. It is also necessary to address the adverse effects of CT measures and sanctions regimes on the work of impartial humanitarian organizations such as the International Committee of the Red Cross (ICRC), with a view to preserving an essential humanitarian space in situations of armed conflict.
This article aims to address some of the legal challenges relating to the interactions between IHL, principled humanitarian action, the CT legal framework and sanctions regimes. It first considers the recurrent but fundamental question of the applicability of IHL to CT operations. It then deals with the pressing question of the co-application of IHL and CT regulations, with a view to preserving the integrity and purpose of IHL while not impeding CT objectives. The article goes on to examine the legal questions arising from the impact of CT measures and sanctions regimes on the IHL-mandated activities undertaken by impartial humanitarian organizations. Finally, it analyzes recent developments at the international, regional and domestic levels and – in light of relevant IHL rules – makes proposals aimed at preserving an effective humanitarian space in contexts where IHL, CT legal frameworks and sanctions apply simultaneously.
The applicability of IHL to the fight against terrorismFootnote 1
Identifying whether entities designated as terrorist can become a party to an armed conflict is not a new issue – it has manifested itself in different ways over the years – and nor is it merely a theorical exercise. It has very real practical and legal consequences.
States have taken varying approaches to classifying situations of terrorist violence. In contexts where governments are threatened by the rise of organized armed opposition, one can observe a tendency by some State authorities to consider that any act of violence carried out by non-State armed groups is purely “terrorist” in nature and is therefore necessarily unlawful, even if such acts are not prohibited under IHL when applicable.Footnote 2 In parallel, the concern of States that the recognition of the existence of an armed conflict will legitimize “terrorists” remains as present today as it has always been. This concern lives on notwithstanding IHL norms (notably Article 3 common to the four Geneva Conventions of 1949) which expressly recognize that their applicability does not confer any legitimacy on armed groups and does not modify those groups’ legal status under international law.Footnote 3
One result of this state of affairs is a denial by some States that non-State organized armed groups designated as “terrorist” can be a party to an armed conflict according to IHL,Footnote 4 or that an armed confrontation with such groups may even amount to an armed conflict. That discourse puts the applicability of IHL to the fight against terrorism into question.
This position is not shared by all stakeholders, however. Many recognize that IHL can be applicable to and relevant for their CT activities when the conditions for its applicability are met, and acknowledge that groups designated as terrorist can be parties to an armed conflict.Footnote 5
In fact, denying the status of belligerent to non-State armed groups simply because they are designated as “terrorist” under CT regulations, or because they are included in international, regional or domestic sanctions lists, is not commensurate with IHL. Indeed, IHL is agnostic in relation to labels and designations given to parties to an armed conflict. It does not recognize any specific legal categories or special regime governing individuals or groups designated as terrorist or included in sanctions lists.Footnote 6 IHL applies independently of whether the acts which trigger its application are lawful, unlawful or even characterized as “terrorist”.Footnote 7 IHL applies to individuals and groups appearing in CT or sanctions lists in the same way that it applies to more classic belligerents. It is therefore submitted that the mere fact that armed violence is labelled as “terrorist” – in political discourse or by legal norms outside IHL – does not mean it should not be classified as an armed conflict. This type of violence may well cross the threshold of armed conflict and trigger the application of IHL rules.
Classifying terrorism-related situations as armed conflicts under IHL
The determination of whether an act of armed violence will trigger the application of IHL must be made objectively and exclusively on the basis of the facts on the ground, according to the classic criteria of an armed conflict derived from IHL norms, regardless of any designation given to those involved in the violence. This view is reflected in decisions of international judicial bodies,Footnote 8 appears in military manuals,Footnote 9 and is widely supported in the academic literature.Footnote 10 As a result, with respect to the involvement in armed violence of non-State armed groups designated as terrorist and the numerous CT measures taken against them at the domestic and international levels, a case-by-case approach to analyzing and classifying situations of violence according to the law must be applied. It is the author's view that the fight against terrorism can lead to situations classified as international armed conflicts (IACs), non-international armed conflicts (NIACs) or situations of armed conflict with a double classification. Situations involving individuals or groups designated as terrorist falling below the threshold of an armed conflict are not governed by IHL.Footnote 11
Generally speaking, armed conflicts involving non-State armed groups designated as terrorist are most often non-international in nature.Footnote 12 The two legal conditions for such armed conflicts must of course be met: the existence of (at least) two parties – including non-State armed groups – with a sufficient degree of organization involved in an armed confrontation of a sufficient intensity.Footnote 13 When these criteria are met, terrorism-related violence would amount to a NIAC.Footnote 14
Interestingly, terrorism is present in international tribunals’ decisions addressing conflict classification. First, the International Criminal Tribunal for the former Yugoslavia (ICTY) used the criteria of intensity and organization in order to distinguish an armed conflict “from banditry, unorganized and short-lived insurrections, or terrorist activities”.Footnote 15 This statement should not be interpreted as meaning that terrorist activities cannot trigger an armed conflict or cannot have a nexus therewith; it only underscores that unorganized, sporadic or isolated terrorist actions by themselves cannot reach the threshold of NIAC under IHL. The ICTY – in the Boškoski case – has made it clear that terrorist acts can be included in the assessment of the intensity requirement:
[W]hile isolated acts of terrorism may not reach the threshold of armed conflict, when there is protracted violence of this type, especially where they require the engagement of the armed forces in hostilities, such acts are relevant to assessing the level of intensity with regard to the existence of an armed conflict.Footnote 16
It can be inferred that what matters for conflict classification is less the terrorist nature of the actions concerned, but rather whether they are part of coordinated military operations involving means and methods of warfare.Footnote 17 As aptly put by Ben Saul, “[t]errorist activity may … possess a dual legal character as both crime and conflict; the categories (as well as the legal approaches to combating them) are not mutually exclusive”.Footnote 18
The fact that tribunals consider that terrorist acts committed by non-State armed groups should be taken into account for the purposes of determining the existence of a NIAC supports the notion that groups designated as terrorist can become party to an armed conflict. It would be illogical to take such acts into account when determining the existence of a conflict and then deny belligerent status to such groups on the basis of the same acts. Whether such groups are legally or politically branded as terrorists has, from an IHL standpoint, no bearing on the determination of the existence of an armed conflict or a group's involvement therein as belligerents.Footnote 19 In addition, the purpose and the motivation of the parties to the armed conflict, State and non-State party alike, are not part of the conflict classification equation under IHL.Footnote 20
Coalitions in terrorism-related contexts: The aggregation and support-based approaches
Often, armed conflicts involving groups designated as terrorist or appearing in sanctions lists are fought by coalitions, with a number of States and armed groups joining forces on both sides. Determining the applicable legal framework in such situations is complex, as it is often difficult to understand the structure and organizational levels of various actors involved in the armed confrontation, or the relationships between them. This is particularly true with regard to the phenomenon of coalitions of non-State armed groups (including those designated as terrorist) that has been observed in the Middle East and Africa. In such situations, it may appear difficult to identify the groups that could be considered as parties to the armed conflict. In some situations, the activities of distinct armed groups might not reach a sufficient level of intensity to meet the threshold of a NIAC when looked at separately and individually. However, the circumstances prevailing in some contexts may require taking a broader view, as the military actions of these groups often appear to be closely connected with the operations undertaken by other belligerents, necessitating a collective approach in determining the applicability of IHL.
When armed groups satisfying the organization criterion coalesce and conduct coordinated military operations against the same adversary (or adversaries), it is submitted that it would be legally sound to aggregate the intensity of identified organized non-State armed groups for classification purposes.Footnote 21 This must be done carefully, however.Footnote 22
Likewise, in coalition warfare against non-State armed groups, new parties to a pre-existing NIAC may be determined using a “support-based approach”, provided certain conditions are met.Footnote 23 The rationale of the support-based approach is to link to IHL the armed forces’ actions that objectively form an integral part of a pre-existing NIAC. The approach revolves around one very simple principle: the closer States’ or non-State armed groups’ armed forces are to the military operations occurring in a pre-existing NIAC through their military support to one of the belligerents, the closer they are to crossing the threshold of IHL applicability to their own actions and to becoming a party to the pre-existing NIAC as a logical consequence of this situation.
In such situations, it is submitted that it is not necessary to assess whether the military support provided fulfils per se the criteria for determining the existence of a NIAC, in particular the criterion of intensity, because these conditions have already been met when determining the existence of the pre-existing NIAC onto which the military support is grafted. In these circumstances, the support provided should be interpreted not as a constitutive element of a potential new NIAC but, on the contrary, as being directly related to the pre-existing NIAC. Thus, the support-based approach focuses only on the nature of the activities performed in support of one of the belligerents,Footnote 24 evidencing a functional approach towards IHL's applicability to coalition warfare in NIAC.
Once the conditions for the applicability of IHL are met, nothing in IHL precludes non-State armed groups designated as terrorist from becoming parties to a NIAC – and consequently having rights and obligations under that body of law. On the other hand, not every actor designated as a terrorist organization is necessarily an organized armed group in the sense of IHL,Footnote 25 as such groups may lack the required level of organization, may be involved in armed violence not meeting the intensity requirement, or may simply be acting without any nexus to an armed conflict.
Finally, to be clear, the expressions “terrorist group”, “armed group” and “non-State party to the armed conflict” are not mutually exclusive. The fact that a group is a party to an armed conflict does not affect the qualification (as “terrorist” or otherwise) of that group under other applicable international law rules such as CT regulations or sanctions regimes. This understanding is in line with common Article 3Footnote 26 and also with Article 3 of Additional Protocol II (AP II), which makes clear that the applicability of AP II does not impede governments from “defend[ing] the national unity and territorial integrity of the State” or limit States’ right to maintain or re-establish law and order by all lawful means.
Addressing the challenges arising from the co-applicability of IHL and CT regulations in situations of armed conflict
Although IHL and the CT legal framework are two separate legal regimes, as illustrated by their specific objectives, rationales and structures,Footnote 27 the applicability of IHL to the fight against terrorism and the increased push for making the CT legal framework applicable to situations of armed conflict have inevitably raised questions relating to their interaction. Addressing these questions is not an easy task, and it is rendered even more complex by the multiplication of CT regulations since 2001 and the continued blurring of the lines in the public domain between acts of violence committed in armed conflict and acts of terrorism.
Understanding how IHL addresses terrorism
IHL does not provide a definition of terrorism, and no internationally agreed-upon definition of terrorism exists today. However, in situations of armed conflict, IHL prohibits most acts that are criminalized as “terrorist” acts in domestic legislation and in international conventions specifically addressing terrorism. For instance, in armed conflict, IHL prohibits direct attacks against civilians based on the principle of distinction, which is a cornerstone of this body of law. It also prohibits indiscriminate attacks and hostage-taking, to name but two more examples. These prohibitions apply in both IAC and NIAC and are binding upon all belligerents as a matter of treaty-based or customary international law.
Even if IHL does not define terrorism, it is not silent on the issue.Footnote 28 It expressly prohibits “measures of terrorism”Footnote 29 and “acts of terrorism”Footnote 30 against persons not or no longer taking part in hostilities, regardless of who – among the parties to the armed conflict – commits such acts. The main objective of these provisions is to prohibit parties to an armed conflict from terrorizing civilians under their control.
IHL rules governing the conduct of hostilities also expressly cover certain forms of terrorist acts. Both Additional Protocols to the 1949 Geneva Conventions prohibit acts aimed at spreading terror among the civilian population.Footnote 31 The prohibitions reflected in these provisions are binding not only as treaty law but also as customary law.Footnote 32
IHL thus provides a strong legal framework with explicit prohibitions that also apply to non-State armed groups designated as terrorist. Violations may trigger individual criminal responsibility both at the domestic and international levels. Indeed, IHL prohibits – as war crimes – specific acts of terrorism perpetrated in armed conflict, as well as a range of other acts that would commonly be deemed “terrorist” if committed outside armed conflict.Footnote 33 Under IHL, war crimes are subject to prosecution by the territorial State or by the State of nationality of the perpetrator and may be subject to universal jurisdiction.
In addition, it is important to recall that in NIACs, States always retain leeway at the domestic level to criminalize any actions undertaken by individuals in the absence of combatant privilege and immunity in such situations. This remains true for NIACs that are part of the fight against terrorism and in regard to individuals designated as terrorist. Concerns that the applicability of IHL can result in impunity for the perpetrators of acts of terrorism in armed conflict are therefore unfounded.
To be clear, there is an essential legal difference between IAC and NIAC concerning combatant status. In NIAC, there is no combatant status (in the technical/legal meaning of the term) or related prisoner of war status in case of capture by the enemy. In the absence of combatant privilege and related immunity under IHL rules governing NIAC, members of non-State armed groups involved in the conflict have no right under domestic law to engage in hostilities against the armed forces of an enemy government (the rationale of combatant status), nor can they be entitled to immunity from prosecution for attacks against military objectives (the core of combatant privilege).Footnote 34 As a result, States have long been entitled to criminally prosecute members of non-State armed forces for offences against national security, whether labelled terrorism or otherwise. States’ domestic criminal laws often prohibit and penalize violence perpetrated by persons or groups not affiliated with the State authorities, including all acts of violence that would be committed in the course of a NIAC.Footnote 35 Therefore, in NIAC, the fact that IHL applies does not impede States from prosecuting, trying, sentencing or extraditing persons suspected of criminal offences, including CT offences, according to applicable law.Footnote 36
It thus appears that the co-applicability of IHL and CT regulations in situations of armed conflict may lead to situations in which the same act can constitute a violation both of IHL and of CT regulations (for instance, a direct attack on civilians or a civilian object). Or it may lead to situations where the action of a non-State party to a NIAC is not prohibited under IHL (for instance, an attack against a legitimate military objective) while being considered a terrorist offence. While it may be reassuring that it remains possible to prosecute such an action under CT legislation, this state of affairs is problematic because it can nullify incentives for armed groups to comply with IHL.Footnote 37 As respecting IHL can significantly reduce the impact of armed conflict on civilians, actions that diminish incentives to comply are cause for concern, as will be explained further below.
Understanding how the CT legal framework addresses armed conflicts
The interaction between IHL and CT regulations is made more complicated by the fact that States have adopted a range of CT measures internationally,Footnote 38 regionallyFootnote 39 and domestically to prevent and punish acts of terrorism. These measures can take various forms, often consisting in the criminalization of certain acts, notably in situations of NIAC.
Alongside the international and regional CT instruments, the current CT legal framework has also been heavily influenced by the work of the United Nations (UN) Security Council. Since the 2001 adoption of Resolution 1373 onwards, the Security Council has increasingly acted as a legislator in the CT field, with multiple binding resolutions requiring States to criminalize terrorist acts and support to terrorism, and has developed a separate CT sanctions regime for persons and entities associated with Al-Qaeda, the Islamic State of Iraq and the Levant (ISIL) and affiliated groups.Footnote 40 Security Council Resolution 2178 of 2014 expressly applies with respect to conduct in the context of armed conflict, again confirming the co-applicability of IHL and CT obligations in such situations.Footnote 41
The scope of the CT offences that States are obliged to implement at the domestic level has become particularly wide and has recently been broadened even further by Security Council Resolution 2462.Footnote 42 This widening of CT offences increases the risk of normative clashes with IHL.Footnote 43
The heavy burden placed by the UN Security Council on member States with regard to the criminalization of terrorism-related acts has been further amplified by the fact that its resolutions do not explicitly define “terrorist acts”,Footnote 44 nor do they provide detailed guidance on how the offences established should relate to IHL.
Despite this lack of clear guidance,Footnote 45 since 2003 the Security Council has repeatedly underlined that States must respect their IHL obligations when countering terrorism.Footnote 46 Resolution 2462 constitutes an important step forward. Operative paragraph 6 of that resolution
[d]emands that Member States ensure that all measures taken to counter terrorism, including measures taken to counter the financing of terrorism as provided for in this resolution, comply with their obligations under international law, including international humanitarian law, international human rights law and international refugee law.
While it is still unclear how member States will implement these requirements, it is submitted that the adoption by the Security Council of a resolution with binding legal effects, expressly requiring consistency and compliance with IHL when designing and implementing all CT measures, indicates that the Council had never intended the CT legal framework to override IHL rules on the basis of Article 103 of the UN Charter.Footnote 47 Rather, Resolution 2462 implies that CT regulations must give way to IHL in the event of friction with the latter.Footnote 48 This would mean that CT regulations must be adopted, implemented and interpreted in light of IHL.
Despite this significant and positive evolution, the request of the UN Security Council to ensure that all CT measures at domestic level comply with IHL is unfortunately far from being fully implemented. While States have generally duly enacted CT offences into national laws, very few have taken into account IHL and armed conflict as required by specific Security Council resolutions and certain instruments to which they have adhered.Footnote 49 Domestic CT laws most often criminalize terrorism without making any exception or qualification to accommodate armed conflict and IHL. Consequently, CT laws can criminalize acts that are not prohibited under IHL, such as attacks by a non-State party to a NIAC on legitimate military objectives.
While, as noted above, States are free to criminalize behaviour that is lawful under IHL in the context of NIACs, doing so using a CT framework reduces incentives to comply with IHL, potentially putting the civilian population at greater risk. In addition, these laws serve as a basis for transnational cooperation with other States to suppress terrorism, giving the criminalization of lawful acts of war an extraterritorial dimension that is even more detrimental to the preservation of the integrity of IHL.
Courts dealing with acts of terrorism in armed conflict have generally approached such acts from a CT legal perspective, ignoring IHLFootnote 50 on various counts.Footnote 51 This may be due to the absence of exclusion clauses in relevant Security Council resolutions, or to the fact that international law does not prohibit the criminalization of organized armed violence in NIACs, whether via CT legislation or regular domestic criminal law.Footnote 52 Some have accepted as CT offences actions that are in conformity with IHL but are carried out by members of non-State parties to a NIAC.Footnote 53
On the other hand, tribunals in Colombia and Italy, for instance, have handed down decisions rejecting the qualification as CT offences under applicable domestic law of actions carried out by a non-State party to a NIAC when they complied with IHL,Footnote 54 or even when they were simply governed by IHL, regardless of whether the actions were lawful under it.Footnote 55
The varying approaches at the national level, oscillating between a tendency to favour the application of CT laws without taking into account some of the underlying IHL principles (notably the fact that under IHL, belligerents are expected to attack each other's armed forces and military objectives) and the sole application of IHL considered as the lex specialis, illustrate the need to ensure an appropriate articulation of the relationship between IHL and CT regulations in domestic law, taking into account their co-applicability in situations of armed conflict, notably in NIAC.
Dealing with the interplay between CT regulations and IHL
The interplay between CT regulations and IHL has been first and foremost articulated in the various sectoral CT conventions adopted at the international level.Footnote 56
The multiplication of IHL exclusion clauses in CT instruments
At the international level, IHL has generally been dealt with by way of clauses carving out from an instrument's scope of applicationFootnote 57 certain actions in armed conflict and/or indicating that the provisions of those treaties shall in no way be interpreted as derogating from IHL.Footnote 58
More specifically, so-called “IHL exclusion clauses” have been almost systematically included in international and regional instruments since the 1979 UN Hostages Convention.Footnote 59 The content of these clauses differs between instruments,Footnote 60 but the formulation which appeared with the 1997 UN Terrorist Bombings Convention has since been replicated in other instruments.
Such clauses articulate the relationship between CT and IHL by establishing limits on what qualifies as a CT offence for the purposes of the instrument by exempting from its scope of application certain actions, actors or targets in armed conflict contexts. These IHL exclusion clauses facilitate the co-application of IHL and CT instruments and aim to avoid, as far as possible, the interference of CT regulations with IHL's delicate balance between humanitarian imperatives and military necessity.
Despite their presence in most CT instruments, IHL exclusion clauses have unfortunately rarely expressly been incorporated into domestic legislation by the States party to these conventions. This oversight is cause for concern: it is important that these clauses be properly incorporated. IHL exclusion clauses are an essential element of CT treaties as they determine the latter's respective scope of application; as such, they cannot be ignored or circumvented by States Parties.Footnote 61
Another difficulty lies in the fact that when exclusion clauses have been incorporated into domestic law and used by legal authorities, they have been interpreted in various and even contradictory ways, creating legal uncertainty concerning their contours and implications. An emblematic example is the IHL exclusion clause contained in the Terrorist Bombings Convention. Article 19.2 of this convention reads:
The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.
Judicial decisions – albeit limited – dealing with this exclusion clause reflect issues regarding the clause's ambiguity, notably in relation to the personal, geographical and material scope of application of IHL. Decisions rendered by UK,Footnote 62 DutchFootnote 63 and BelgianFootnote 64 courts in recent years illustrate the difficulties encountered when interpreting and applying the IHL exclusion clause. They also show an inclination to reverse the clause's rationale, with a view to securing the prevalence of CT laws over IHL when it comes to certain conduct in armed conflict.Footnote 65 Further, they demonstrate that an overly broad IHL exclusion clause – or one perceived to be too broad by those applying the law – may result in attempts to restrict its operation.Footnote 66 This can occur through erroneous interpretation of IHL principles and concepts, such as the notion of NIAC, the geographical boundaries of IHL's applicability, or the definition of armed forces.
The key elements of the IHL exclusion clause
In order to curb the tendency to circumvent the object and purpose of the IHL exclusion clause, it is essential to clarify some key elements.
To start with, it is submitted that the wording of the IHL exclusion clause, in itself, requires that its content be exclusively determined by IHL. The expression “as those terms are understood under international humanitarian law” used in the clause clearly defers to IHL to establish the meaning of the concepts it addresses, and therefore to define its exact scope of application in armed conflicts. This also aligns with the practice of the UN Security Council requiring States to act consistently with IHL while taking CT measures. This requirement means that CT measures need to be adopted, implemented and interpreted by courts, tribunals and other judicial authorities in a manner which ensures that they comply with IHL's rules, principles and concepts. In other words, when State authorities apply the IHL exclusion clause, or a judicial authority has to pronounce on whether armed conflict constitutes the background of the case at hand and/or whether the person suspected of having committed the act in question is a member of armed forces, they must carry out their analysis based exclusively on IHL.Footnote 67
This means that the notion of “armed conflict” in the clause must be assessed on the basis of the IHL conditions for armed conflict, as derived from common Articles 2 and 3 (for international and non-international armed conflict respectively) and customary law.
Similarly, the expression “armed forces” contained in the clause must be interpreted exclusively within its IHL meaning. This precludes an interpretation taking into account elements foreign to IHL, as has been the case in Dutch jurisprudence. In the Context case of 2015, the Hague district court adopted a narrow reading of the notion of armed forces, confining it to State armed forces only, based on an interpretation exclusively made for the purposes of the CT convention at hand. The position held by the Dutch court is not new and reflects long-standing debates on the meaning of the phrase “armed forces” used in certain CT conventions. The issue is not yet settled, as the current discussions surrounding the Draft UN Comprehensive Convention on International Terrorism show.Footnote 68 However, it is submitted that the Hague district court erred when interpreting the IHL exclusion clause, first by indicating that that the clause only excludes the activities of State armed forces and then by justifying this narrow reading by an interpretation carried out for the purposes of the CT law. By doing so, the court held a position incompatible with the fact that under IHL the notion of “armed forces” is not limited to States’ armed forces and that certain acts committed by non-State parties to a NIAC are not prohibited under IHL, and so should not be deemed “terrorist”, if both the logic and rules governing such conflicts are to be preserved.
Indeed, if the notion of “armed forces” is to be interpreted exclusively in light of IHL, as required by the clause, the activities of a non-State party to a NIAC should be excluded from the scope of the CT convention. While the notion of “armed forces” is not defined in the Geneva Conventions, it is submitted that the term must include members both of governmental forces and the forces of non-State organized armed groups. In the context of common Article 3, the term “armed forces” refers to the armed forces of both the State and non-State parties to the conflict. This is implied by the wording of common Article 3, which provides that “each Party to the conflict” must afford protection to “persons taking no active part in the hostilities, including members of armed forces”. Furthermore, common Article 3 does not refer to “the” armed forces, which could suggest State armed forces alone, but rather to “armed forces”. Under IHL, the existence of a NIAC requires the involvement of fighting forces on behalf of the non-State Party to the conflict that are capable of engaging in sustained armed violence, which requires a certain level of organization. Such organized armed groups constitute the “armed forces” of a non-State party to the conflict in the sense of common Article 3.Footnote 69 Otherwise, the latter would either not be protected at all, or they would be privileged in that they – unlike governmental armed forces – would be protected at any moment except when they are directly participating in hostilities.
This interpretation of the notion of armed forces strictly based on IHL is also supported by a close examination of the travaux préparatoires of the Terrorist Bombings Convention, which clearly highlight the will of the drafters to exclude the acts of non-State armed groups that are parties to an armed conflict from the scope of the instrument.Footnote 70 This is reflected in the dichotomy incorporated – as a compromise proposed by the United States and Belgium – by the drafters between “activities of armed forces during an armed conflict” and “military forces of a State in the exercise of their official duties” in Article 19.2. Had the drafters wanted to exclude non-State armed forces from the scope of the clause and therefore authorize the criminalization as CT offences of their acts in armed conflict, they would have used the expression found in the second part of Article 19.2, “military forces of a State in the exercise of their official duties”, which clearly refers only to States’ armed forces. Instead, the drafters opted for a broader formula, reflecting their wish that the IHL exclusion clause also cover the activities of the armed forces of the non-State party to the armed conflict.Footnote 71 This has later been clearly recognized by the UK Supreme Court in the Regina v. Mohammed Gul case, stating that “it is also fair to say that [the Terrorist Bombings Convention and the 1999 UN Terrorist Financing Convention] … appear to have been drafted so as to exclude insurgent attacks on military forces in non-international armed conflicts from their respective ambits”.Footnote 72
Framing an IHL exclusion clause
The repeated controversies surrounding the interpretation of the IHL exclusion clause as it is presently formulated serve as an invitation to clarify its content and application.
In this regard, it can be argued that an IHL exclusion clause fully excluding all activities carried out in armed conflicts may be unnecessary, may be counterproductive from a judicial standpoint, and may lead to interpretation by judges aimed at limiting or annihilating the effects of the clause with a view to ensuring the applicability of CT laws to certain behaviours in armed conflicts. Indeed, even if IHL addresses the terrorist phenomenon in armed conflict, IHL rules governing terrorism may not be sufficient to comprehensively suppress terrorist-related armed violence in armed conflict. The sole applicability of IHL to terrorist-related conduct in armed conflict may leave gaps in this regard, while the CT legal framework may effectively fill them with criminalization of conduct not covered by war crimes – for instance, for preparatory offences (financing, recruitment, training, membership or travelling). The CT legal framework may also add further specialized offences (such as civilian aircraft hijacking) or cover acts committed during an armed conflict but with no nexus to it.Footnote 73
A clause completely excluding situations of armed conflict from the scope of CT instruments would eventually run counter to the trend observed for years in CT instruments, CT-related Security Council resolutions and CT domestic laws, which highlight States’ inclination to ensure the co-applicability of IHL and the CT legal framework in situations of armed conflict.
Therefore, it can be contended that the debate on an IHL exclusion clause focuses not so much on whether armed conflict situations should be excluded from the scope of application of CT instruments, but rather on defining which acts committed during armed conflict should be excluded and thus exclusively regulated by IHL.
In order to dispel the ambiguities raised by current formulations of IHL exclusion clauses found in CT instruments (notably the Terrorist Bombings Convention), clarity should be provided on who and what should be covered by the clause. A more precise delineation of the nature of the acts covered by the exclusion, and also of their authors, will help to prevent misinterpretation and attempts at circumventing the operation of the clause, as have been observed in certain contexts.
Discussions on the wording of an IHL exclusion clause have predominantly revolved around the notion of “armed forces” – notably, whether this notion is limited to States’ armed forces or expands to non-State armed groups in order to reflect IHL. In order to avoid misunderstanding and to ensure that the exclusion clause is interpreted in light of IHL, it is suggested that the expression “armed forces” be replaced by the phrase “parties to the armed conflict”. The inclusion of this phrase in the IHL exclusion clause would be in line with IHL, as that is the term of art used to designate the opposing sides in an armed conflict, whether international or non-international. It is through its armed forces that a party engages in hostilities; one of the IHL criteria for considering that a non-State group may be considered a party to a NIAC is that it has reached a sufficient organizational threshold, demonstrated by the existence of an armed force with the capacity to engage in sustained and coordinated military operations and to implement IHL.
Another option that would avoid the controversies relating to the expression “armed forces” is to simply exclude from the scope of a CT convention all action carried out in armed conflict in accordance with IHL. This is the approach taken by Canada and New Zealand to implement the IHL exclusion clauses contained in the CT instruments to which they have adhered in their domestic law.Footnote 74 This option therefore focuses exclusively on the nature of the actions, instead of being driven by the status of their authors, such that it covers the lawful acts of war carried out by members of the armed forces of the parties to the armed conflict as well as those of persons acting on their behalf (such as civilians directly participating in the hostilities). This option thus preserves the ambit and purpose of IHL by exempting actions in conformity with IHL from the scope of CT offences, while allowing judges to rely on CT legislation for acts committed in armed conflict that do not comply with the applicable rules of IHL.
On this basis, it is submitted that an appropriate IHL exclusion clause should exclude from the scope of a CT instrument activities conducted in armed conflict by the parties thereto and persons acting on their behalf, which are regulated and not prohibited by IHL. It would therefore cover actions of all belligerents, including State and non-State armed forces and civilians directly participating in hostilities. The clause would apply only in relation to actions that are governed by IHL (i.e., with express rules applicable to the action concerned, such as rules regulating detention or the conduct of hostilities) and, cumulatively, that are not prohibited by it.
The rationale of this proposal is to ensure that actions of belligerents that comply with IHL – State and non-State parties to the armed conflict alike (including those non-State organized armed groups that are designated as terrorist groups) – will not be labelled and criminalized as terrorist acts or offences. This approach would be in line with the development of the international jurisprudence on acts of terrorism in armed conflict, notably the war crime of intending to spread terror amongst the civilian population. In the Galić case, the ICTY made it clear that for the purposes of the elements of the crime, the notion of “acts of violence” does not encompass acts against legitimate military objectives but only includes unlawful attacks against civilians,Footnote 75 confirming that lawful acts of war should not be considered acts of terrorism.Footnote 76
This proposal also preserves the policy and legislative space of States because certain offences, notably CT offences related to preparatory activities, are not regulated by any IHL provisions. This would include, for instance, the financing of terrorism, travelling in order to join groups designated as terrorist, training, or recruiting. In addition, the proposal leaves to the discretion of State authorities the option to prosecute under either CT laws or IHL acts carried out in armed conflict that contravene both the CT legal framework and IHL.Footnote 77
Furthermore, excluding from the scope of CT laws actions that are regulated and not prohibited by IHL would help avoid a “lopsided legal situation unfavourable to [non-State armed group] compliance with IHL”.Footnote 78 IHL presumes that military objectives can and will be attacked by both parties to a conflict and seeks to protect those not participating in hostilities from such attacks. A clause that fails to take this rationale of IHL into account would allow the incrimination as “terrorist” acts of conduct that is not unlawful under IHL, which may in turn discourage IHL compliance by non-State armed groups. Much of the motivation for fighting in accordance with the law is likely to erode in such cases. In addition, labelling acts that are lawful under IHL as “terrorist” makes the implementation of Article 6(5) of AP II even more difficult.Footnote 79 The objective of that provision is to encourage respect for IHL by granting the broadest possible amnesty to persons who have participated in hostilities and respected applicable IHL rules. For obvious reasons, the prospect of amnesty would be significantly diminished if even lawful acts of war were to be qualified as acts of terrorism under the CT legal framework. This may ultimately become an obstacle to peace negotiations and reconciliation efforts in the future.
While it must be recognized that certain non-State armed groups have deliberately rejected IHL and the values underpinning it, it is important to look beyond these specific cases. Even today, in many NIACs, an IHL dialogue with non-State armed groups, including those designated as terrorist, is possible and even valued by such actors. CT regulations should not undermine efforts to reach out to non-State organized armed groups in order to promote and enhance compliance with IHL.
This concern is also why the ICRC does not find the term “terrorist” to be helpful to describe behaviour in armed conflict that conforms to IHL, and considers that conduct regulated and not prohibited by IHL should not be labelled “terrorist” in international conventions or in domestic laws, so as to reflect the reality of armed conflicts and the underlying rationale of IHL (that military objectives can and will be attacked).Footnote 80 Acts directed at military objectives constitute the very essence of armed conflict and should never be legally defined as terrorist under a co-applicable regime of international law. To do so implies that such acts are prohibited and must be subject to criminalization under that other international legal framework, which weakens efforts to achieve coherence between IHL and the CT legal framework.
The impact of CT measures and sanctions regimes on humanitarian action: The need to reconcile CT and sanctions legal frameworks with IHL
Efforts to curb all possible direct and indirect support to designated individuals and entities via CT measures and sanctions have led to increased control and restraint on all activities, including humanitarian activities, seen as potentially benefiting such actors. There has been increasing evidence in recent years that CT measures and sanctions regimes have had an adverse impact on principled humanitarian action; indeed, some are of particular concern for humanitarian activities in armed conflict.
CT measures adopted by States are frequently based on the UN Security Council resolutions that have been adopted since 2001, as well as on CT instruments. While the exact content and scope of the CT offences may vary from one State to another, many States have made it a criminal offence to provide “support”, “services” or “assistance” to entities or persons involved in terrorist acts.Footnote 81 Often, the relevant provisions are broadly worded and can be interpreted to include within their ambit any humanitarian activity directly or indirectly benefitting “individuals or entities associated with terrorism”. In practice, this broad scope results in the potential criminalization of the core activities of impartial humanitarian organizations and their personnel.Footnote 82
Sanctions regimes are also an increasing source of concern for impartial humanitarian organizations.Footnote 83 Financial sanctions, restrictions on the import of certain commodities or material, and travel bans have all impacted on humanitarian action. All three types of measures pose challenges, but financial sanctions have proven to be the most problematic for humanitarian action. Financial sanctions prohibit making funds, financial assets or economic resources available, directly or indirectly, to designated individuals and entities. The purpose of the prohibition is to deny listed individuals and entities – for as long as they remain subject to sanctions – the means to support or conduct any action considered to be a threat to international peace and security, or to be terrorist in nature. The notion of “economic resources” is understood to include assets of every kind, whether tangible or intangible, movable or immovable, actual or potential, which may potentially be used to obtain funds, goods or services.Footnote 84 This prohibition may encompass the activities and modi operandi of impartial humanitarian organizations. The payment of utilities taxes, the hand-over of humanitarian items (such as medicines), the rehabilitation of medical or other essential civilian public infrastructure (such as water treatment or power plants), and certain humanitarian activities such as large-scale food assistance operations can fall within the scope of the prohibition.Footnote 85 When financial sanctions target governments, ministries, or non-State armed groups exercising governmental functions (such as in Eastern Ukraine or Gaza) or controlling parts of a country (such as in Syria, Somalia or Yemen), they increase the likelihood that a number of humanitarian activities may be deemed to constitute a proscribed provision of assets or support to listed entities.
Sanctions regimes also often include restrictions on the import of goods, which can delay or even block the import of goods needed to implement humanitarian activities. Sanctions measures sometimes encompass dual-use objects which can be used for military purposes but are also indispensable for the implementation of humanitarian operations.Footnote 86
Travel bans can also raise impediments to humanitarian action. They require States to prevent entry into and transit through their territory by designated individuals. This can be an issue as such restrictions may prevent impartial humanitarian organizations from organizing meetings with designated persons in third countries with a view to negotiating access, obtaining security assurances or even implementing the ICRC's neutral intermediary role.
Humanitarian organizations also potentially face the risk of being listed themselves for having carried out their humanitarian mandates. For instance, the UN sanctions regime established under Security Council Resolution 1267 takes a broad approach to the criteria for individuals or entities to be designated. The criteria for designation include activities that “otherwise [support] acts or activities of Al-Qaida, ISIL, or any cell, affiliate, splinter group or derivative thereof”,Footnote 87 which could be interpreted to include assistance or protection activities carried out by impartial humanitarian organizations.
Furthermore, sanctions regimes pose an increased risk of liability for impartial humanitarian organizations and their personnel, as the mental element required for a violation of sanctions is low. There is no requirement to intend to support the illegal activities of the listed entity.Footnote 88 Consequently, humanitarian actors may face civil and criminal prosecution, as some States have established sanctions violations as a criminal offence under their domestic laws.Footnote 89
In addition, the applicability of CT measures and sanctions regimes to the activities of impartial humanitarian organizations carried out in armed conflict has also triggered reverberating effects that impact humanitarian action.
Increasingly, donors are including increasingly strict and more onerous CT/sanctions clauses in funding agreements with humanitarian organizations. These clauses aim at ensuring that persons or entities designated as terrorist or listed under sanctions regimes do not receive funds or items directly or indirectly through humanitarian operations. In such clauses, compliance with CT measures and sanctions by the grantees and related due diligence requirements are preconditions for the disbursal of funds to impartial humanitarian organizations. These requirements, besides being cumbersome and time-consuming (thereby limiting flexibility and responsiveness), make it challenging for organizations to act in accordance with IHL and in a principled manner. Likewise, for fear of violating CT and sanctions legal frameworks, private actors such as banks, suppliers, transporters and insurers have developed over-compliance or “de-risking” policies. Consequently, several commercial actors have reduced or even stopped their lines of business with impartial humanitarian organizations, which are often considered to be “low-profit” and “high-risk” clients, further restricting the latter's ability to operate in countries subject to restrictive measures.
The cumulative effects of CT measures and sanctions regimes have thus adversely impacted the scope, amount and quality of humanitarian activities delivered to victims of armed conflict.Footnote 90 Many affected activities relate to the core mandate of the ICRC: visits and material assistance to detainees, first-aid training, war surgery seminars, IHL dissemination to weapons bearers, delivery of aid to meet the basic needs of the civilian population in “hard-to-reach” areas, rehabilitation of critical civilian infrastructure, and medical assistance to wounded and sick fighters, for instance.
As a result, the ICRC has underlined that, as a matter of law and policy, CT measures and sanctions regimes that States and international organizations adopt must not run counter to the principles they have supported and endorsed through IHL treaties, and must not challenge the ability of impartial humanitarian organizations to conduct their activities in a principled way.Footnote 91
The IHL rules governing humanitarian action are at stake
In legal terms, CT measures and sanctions regimes impeding principled humanitarian action may be said to be incompatible with the letter and spirit of IHL. Particular scrutiny is warranted with regard to the relationship between CT and sanctions legal frameworks and three areas of IHL: the rules governing humanitarian operations; the rules protecting the wounded and sick, as well as those providing medical assistance; and the rules protecting humanitarian personnel.
IHL rules governing humanitarian activities
Under IHL, the parties to an armed conflict bear the primary obligation to meet the basic needs of the people under their control affected by the armed conflict. In parallel, notably when those basic needs remain unmet, IHL lays down the legal basis for humanitarian activities to be offered and provided by impartial humanitarian organizations. Common Articles 3 and 9/9/9/10 spell out the so-called “right of initiative”. This right of initiative is the legal entitlement given to impartial humanitarian organizations to offer their humanitarian activities to parties to international and non-international armed conflicts, regardless of how a conflict may be characterized under CT regulations or sanctions regimes. Usually, neither CT measures nor sanctions regimes prohibit mere engagement and interaction with designated persons and entities involved in armed conflict. However, the broad prohibition of support to them, as well as the possibility of qualifying certain humanitarian action as an unlawful provision of economic resources under sanctions regimes, inherently restricts the scope of the humanitarian activities that impartial humanitarian organizations can offer to parties to the armed conflict. As such, CT measures and sanctions may encroach on the right of initiative of impartial humanitarian organizations, while there is nothing in IHL that restrains that right.
This right to offer services does not translate into an unrestricted right of access given to humanitarian actors. In order to carry out their humanitarian activities in situations of armed conflict, impartial humanitarian organizations must seek and obtain the consent of the parties concerned. In international armed conflicts, the relevant IHL provisions specify that consent only needs to be obtained from the States that are a party to the conflict and are “concerned” by virtue of the fact that the proposed humanitarian activities are to be undertaken in their territory or in the areas under their effective control. For NIACs, common Article 3 is silent on who needs to consent to humanitarian operations, but it is the ICRC's view that as a matter of law, consent should be sought from the State (through its effective government) in whose territory the NIAC is taking place, including for humanitarian activities to be undertaken in areas over which the State has lost control.Footnote 92 Under IHL, consent must not be unlawfully withheld, for instance when the concerned party is unwilling or unable to meet the basic needs of the population or intends to cause or perpetuate starvation in areas where designated persons or entities are in control or active.Footnote 93 Overall, under IHL, consent cannot be withheld by concerned States for the sole reason that humanitarian activities are to be delivered in areas where designated persons or entities are active or in control, nor can it be denied on the basis that the humanitarian activities are to be undertaken in favour of designated persons or members of designated entities if their situation makes them eligible for humanitarian assistance.
Once humanitarian activities are accepted, the State and non-State parties to an armed conflict are under an obligation to cooperate and to take positive action to facilitate humanitarian operations, subject to their right of control.Footnote 94 This includes simplifying administrative formalities as much as possible to facilitate visas or other immigration issues, financial/taxation requirements, import/export regulations, field-trip approvals, and possibly granting the privileges and immunities necessary for the organization's work. In short, the parties must enable “all facilities” needed for an organization to carry out its agreed humanitarian functions appropriately.Footnote 95 The obligation to “allow and facilitate” is expressly mentioned in IHL rules regulating humanitarian activities in situations of IAC (including occupation). Neither common Article 3(2) nor Article 18(2) of AP II address this aspect of humanitarian activities, but the rules applicable in IAC on this issue are considered customary and applicable in both international and non-international armed conflicts.
Under IHL governing IACs, the obligation to allow and facilitate relief operations applies not only to the parties to an armed conflict but to all States. This means that States not party to the conflict, such as those through territory of which impartial humanitarian organizations may need to pass in order to reach conflict zones, must authorize such transit, subject to their right of control, the objective of which is limited to ensuring that the humanitarian operations transiting through their territory are exclusively humanitarian in nature.Footnote 96
IHL governing NIACs does not expressly contain a similar obligation for third States, but there is nevertheless an expectation that States not party to such conflicts will not oppose transit through their territory and will not take measures so as to impede the work of impartial humanitarian organizations seeking to reach the victims of a NIAC. Should those States refuse to allow and facilitate humanitarian activities, they would in effect prevent the humanitarian needs of the victims of an armed conflict from being addressed and render the consent given by the parties to the conflict void. The humanitarian spirit underpinning IHL should encourage non-belligerent States to facilitate humanitarian action that has already been accepted by the parties to a NIAC. It could also be argued that this obligation incumbent upon third States could be inferred from the due diligence component enshrined in the obligation to ensure respect for IHL under common Article 1, as third States’ refusal may, for instance, make it impossible for parties to the conflict to fulfil their primary obligation to meet the basic needs of the population.Footnote 97 The imposition by third States of CT and sanctions regimes obstructing humanitarian action may therefore be incompatible with their obligation to respect and ensure respect for certain IHL provisions governing humanitarian activities carried out by impartial humanitarian organizations.Footnote 98 In addition, based on their obligation to perform treaty obligations in good faith as reflected in Article 26 of the Vienna Convention on the Law of Treaties, third States – as high contracting parties to the Geneva Conventions – are expected not to take any action or measures that would frustrate the operation of IHL rules, including those governing humanitarian access and action.Footnote 99
On this basis, it is submitted that CT measures and sanctions must be implemented such that they do not constitute unlawful denial/withholding of consent to humanitarian activities conducted by impartial humanitarian organizations in accordance with IHL. Therefore, States, including non-belligerent States, are expected not to design measures and sanctions regimes which conflict with their obligation to allow and facilitate humanitarian action.
IHL rules protecting the wounded and sick as well as those providing medical assistance
The right of wounded and sick civilians and fighters placed hors de combat to be respected and protected, to be treated humanely without any adverse distinction and to receive, to the fullest extent practicable and with the least possible delay, the medical care required by their condition, as well as to be searched for, collected and evacuated, is a foundational principle of IHL.Footnote 100 This obligation of means is first and foremost an obligation incumbent upon all parties to the conflict. However, “taking all possible measures” also encompasses permitting impartial humanitarian organizations such as the ICRC to assist with collecting and caring for the wounded and sick, even if they are designated persons under CT and/or sanctions frameworks. Protections afforded by IHL to the wounded and sick would often be meaningless without access to humanitarian personnel and supplies, so IHL also shields those engaged in medical care, be they medical personnel, humanitarian personnel or other civilians.Footnote 101
Unfortunately, in certain contexts, humanitarian activities in favour of the wounded and sick have been denied because the latter have been labelled as terrorist or are suspected to be affiliated with terrorists. This illustrates a tendency of some CT policies to recast medical care as a form of illegitimate support. Furthermore, although the 1267 sanctions committee has never, to the best of our knowledge, listed an individual solely on the basis of the provision of medical or humanitarian assistance, it has nonetheless referred to medical activities as part of the basis for listing two individuals and two entities,Footnote 102 implying that medical care and medical supplies are considered forms of impermissible support for designated terrorist groups. Arguably, however, CT regulations and sanctions regimes that treat the provision of humanitarian activities for the benefit of wounded and sick designated persons as a form of prohibited support run against the letter and spirit of IHL.
IHL rules protecting humanitarian personnel
Complementary to the aforementioned IHL rules, a fundamental tenet of this body of law is that humanitarian personnel and objects used to undertake humanitarian activities must be respected and protected.Footnote 103 This rule is a necessary corollary of the rules providing for rapid and unimpeded access for humanitarian relief activities and freedom of movement of humanitarian relief personnel. The safety and security of humanitarian relief personnel is an indispensable condition for the delivery of humanitarian relief to civilian populations in need. This should include protection against practices such as harassment of humanitarian personnel and intimidation of such personnel aimed at disrupting their work, and more broadly should include freedom from undue interference, notably arrest, for carrying out their duties.
While the Additional Protocols expressly prohibit prosecuting those who provide medical assistance in international and non-international armed conflicts, no such express norm has been introduced in relation to humanitarian personnel. However, the absence of a similar express prohibition should in no way be interpreted as a blank cheque for States to prosecute humanitarian personnel for the delivery of humanitarian activities undertaken in accordance with IHL. Indeed, it is submitted that a prohibition against prosecuting humanitarian personnel for actions foreseen by IHL can be inferred from the obligation to “respect and protect” such personnel. This obligation is a term of art appearing in the Geneva Conventions and their Additional Protocols and is also considered a customary rule.Footnote 104 This requirement triggers obligations of a negative and positive nature. The “respect” prong demands compliance with duties of abstention, including obligations not to attack humanitarian personnel, harm them in any way, or subject them to arbitrary detention. The “protect” prong is a positive obligation to take steps to ensure that humanitarian personnel can carry out their activities without any undue interference with their tasks. The overarching objective of the obligation to respect and protect is to ensure that humanitarian personnel can reach victims of armed conflict, whether designated or not under CT regulations and sanctions. Unfortunately, in recent years, humanitarian personnel have been arrested and prosecuted under CT laws for carrying out their duties mandated by IHL. Similarly, sanctions regimes may also consider some humanitarian activities as a form of prohibited support. These approaches run counter to the IHL protections for humanitarian personnel and undermine swift, effective humanitarian action.
Recent trends and solutions to address the challenges raised by CT/sanctions legal frameworks
The above reminds us that specific attention should be paid to the continued friction existing between CT and sanctions legal frameworks, on the one hand, and IHL, on the other. The current features of CT regulations and sanctions regimes do not take sufficient account of IHL rules. They do not permit impartial humanitarian organizations to carry out their mandates in a manner compliant with IHL, and so compromise the rights and dignity of victims of armed conflicts. It remains essential for States and international organizations to take specific action to ensure that their CT and sanctions frameworks are compliant with IHL.
In this regard, the current trend indicating an increasing – albeit still insufficient – effort at the international, regional and domestic levels by those designing and implementing CT and sanctions frameworks to better include IHL in their matrices, and to better protect principled humanitarian action, is welcomed.
CT frameworks and principled humanitarian action: Quivering hopes
In the CT realm, recent years have seen the emergence of a positive tendency towards progressively including IHL elements into the CT legal equation at the international level. This has been accompanied by a noticeable improvement at the domestic level, as States have begun to incorporate safeguards in their domestic legislation aimed at preserving principled humanitarian action.
Since 2005, UN Security Council resolutions in the CT domain have almost systematically included paragraphs on the necessity for States to comply with international law, including IHL, when taking or implementing CT measures.Footnote 105 More recently, the adoption of Security Council Resolution 2462 in March 2019Footnote 106 marked a major step forward. For the first time, the Council imposed on UN member States – using, in a Chapter VII resolution, mandatory “decides” and “demands” language – a requirement that,
in a manner consistent with their obligations under international law, including international humanitarian law, … [they] ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense the willful provision or collection of funds, financial assets or economic resources or financial or other related services, directly or indirectly.Footnote 107
The Council also required that “all measures taken to counter terrorism, including measures taken to counter the financing of terrorism as provided for in this resolution, comply with [States’] obligations under international law, including international humanitarian law”.Footnote 108 These operative paragraphs were complemented by another one (more of a hortatory nature) that
[u]rges States, when designing and applying measures to counter the financing of terrorism, to take into account the potential effect of those measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law.Footnote 109
The broad material scope of application of the first two paragraphs is remarkable as it relates to all CT measures, indicating that States have no other choice than to adjust their CT measures to IHL requirements. In addition, the third paragraph delves further into the interrelationship between CT and IHL by addressing the impact of CT measures on humanitarian action and by urging States to take into account the potential effect of measures aimed at countering terrorism, including its financing, on principled humanitarian action foreseen by IHL.
Another important aspect of this resolution lies in the clarification it gives on whether the conditions to bring the “primacy clause” contained in Article 103 of UN Charter into operation would be met in order to regulate the interaction between IHL and CT frameworks in case of contradiction between these two bodies of law.Footnote 110 Indeed, operative paragraphs 5 and 6 of Resolution 2462 can be interpreted as a decision under Article 25 of the UN Charter, by which the Security Council requires strict compliance by States with their IHL obligations when designing, implementing and interpreting CT measures.Footnote 111 As aptly put by Emanuela-Chiara Gillard, operative paragraphs 5 and 6 “[put] to rest any doubts that may have existed as to whether the Council had intended to override IHL”.Footnote 112 The requirement to act in conformity with IHL laid down in those paragraphs implies that it is CT regulations that must give way to IHL in the event of friction between the two legal frameworks. Therefore, the combined effects of operative paragraphs 5, 6 and 24 would permit interpreting the extensive CT obligations laid down in Resolution 2462 as excluding from their scope exclusively humanitarian activities carried out by impartial humanitarian organizations, regulated and authorized by IHL.
Even if it is difficult to determine the immediate influence that Resolution 2462 has had on domestic CT legislation, one can observe that the years 2019–20 have been quite prolific in terms of humanitarian exemptions included therein.Footnote 113 The personal and material scope of these exemptions vary from one law to another,Footnote 114 but overall, they illustrate that engaging State authorities on the importance of upholding their IHL obligations while implementing CT measures can be successful and can result in an effective protection of impartial humanitarian organizations and their personnel.
Sanctions and principled humanitarian action: Building hopes
In the sanctions domain, designers at both the international and regional levels have been less inclined to introduce humanitarian carve-outs into sanctions matrices. Indeed, since 2000, only two UN sanctions regimes out of the fourteen currently in force have foreseen explicit, legally binding humanitarian exemptions:Footnote 115 the Taliban sanctions regime and the Somalia sanctions regime.
In December 2000 – and until 2002 – the UN Security Council imposed a ban on flights from or to Taliban-controlled areas but excluded “organizations and governmental relief agencies which are providing humanitarian assistance to Afghanistan, including the United Nations and its agencies, governmental relief agencies providing humanitarian assistance, the International Committee of the Red Cross and non-governmental organizations as appropriate,” as determined by the 1267 sanctions committee.Footnote 116 This exemption is no longer in force. Recently, the UN Security Council introduced a new humanitarian exemption in the Taliban sanctions regime through Resolution 2615, adopted on 22 December 2021, deciding that
humanitarian assistance and other activities that support basic human needs in Afghanistan are not a violation of paragraph 1 (a) of resolution 2255 (2015), and that the processing and payment of funds, other financial assets or economic resources, and the provision of goods and services necessary to ensure the timely delivery of such assistance or to support such activities are permitted.Footnote 117
Similarly, regarding Somalia in 2010, after the designation of Al-Shabaab as a terrorist group, UN Security Council members inserted a humanitarian exemption excluding from 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.Footnote 118
At the European Union (EU) level, only one very specific and limited humanitarian exemption has been granted. In 2016 the EU excluded from the scope of its sanctions applicable to Syria the purchase of oil
by public bodies, or by legal persons or entities which receive public funding from the Union or Member States to provide humanitarian relief in Syria or to provide assistance to the civilian population in Syria, where such products are purchased or transported for the sole purposes of providing humanitarian relief in Syria or to provide assistance to the civilian population in Syria.Footnote 119
Referring to IHL in the sanctions architecture: The UN and the EU
Recently, on the occasion of the renewal of three UN sanctions regimes (the Democratic Republic of the Congo (DRC), Mali and the Central African Republic (CAR)), the UN Security Council has used in its resolutions new language aimed at introducing an IHL element, paving the way for more consideration on preserving humanitarian space. In these country-specific sanctions regimes, the Security Council has requested that implementation measures taken by States comply with international law, including with IHL. This is the first time that such language has been used in “non-counterterrorism” sanctions at the UN.
In the resolution renewing the UN sanctions applicable to the DRC, the Security Council first stressed in a preambular paragraph that “the measures imposed by this resolution are not intended to have adverse humanitarian consequences on the civilian population of DRC”. This “intention” clauseFootnote 120 is then complemented by the insertion of a binding operative paragraph which “[d]emands that States ensure that all measures taken by them to implement this resolution comply with their obligations under international law, including international humanitarian law, international human rights law and international refugee law, as applicable”.Footnote 121 These paragraphs were replicated in two resolutions adopted a few weeks later, renewing the UN sanctions regimes applicable to the CAR and Mali.Footnote 122
Even if these paragraphs do not explicitly establish a humanitarian exemption for humanitarian activities carried out by impartial humanitarian organizations, they nonetheless constitute an important development, in particular operative paragraph 4 of Resolution 2582 introducing a requirement for all States to comply with IHL when implementing the UN sanctions regime at the domestic level. These “IHL clauses” clearly assist countries that want to include humanitarian carve-outs but feel otherwise prevented from doing so because they think they are required to stick to the text adopted by the Security Council. Having such IHL clauses in resolutions designing or renewing sanctions regimes will give comfort to States that they are complying with the resolutions when adopting such safeguards in their domestic legal orders. In particular, the fact that the operative paragraph contained in the resolution renewing the DRC sanctions uses “demands” languageFootnote 123 provides States with further comfort that the paragraph is imbued with an obligatory character based on Article 25 of the UN Charter.Footnote 124
Progress has also been made at the regional level, notably in the EU. In its recent EU Council conclusions, the EU clearly insisted on its intent to avoid negative impacts on principled humanitarian action and its commitment to comply with international law, especially IHL and humanitarian principles.Footnote 125 The Council conclusions on humanitarian assistance and IHL of November 2019 are particularly clear in this respect:
The Council welcomes UN Security Council Resolution 2462(2019) …. The Council, in line with the Security Council Resolution, reiterates that any EU measures including designing and applying restrictive measures and all counter-terrorism measures, must be in accordance with all obligations under international law, in particular international human rights law, international refugee law, and international humanitarian law. The Council will seek to avoid any potential negative impact on humanitarian action and encourages Member States to ensure that domestic counterterrorism measures and restrictive measures are in accordance with international law.Footnote 126
More recently, the EU guidance on COVID and sanctions also adopted a principled position with regard to IHL. Indeed, the guidance seems to recognize the precedence of IHL over EU sanctions and thus the possibility of delivering humanitarian activities even if they would constitute, within EU sanctions, a prohibited provision of economic resources to listed persons or entities:
As a general rule, EU Counter-Terrorism Sanctions Regulations do not allow the making available of funds and economic resources to designated persons or entities, although a number of derogations exist …. However, in accordance with International Humanitarian Law, where no other options are available, the provision of humanitarian aid should not be prevented by EU sanctions.Footnote 127
Undoubtedly, the multiplication of IHL references in sanctions regimes is an important development toward a more effective protection of principled humanitarian action and an important incentive for the inclusion at the State level of humanitarian exemptions. However, so far, sanctions designers have stopped short of providing more concrete and effective humanitarian safeguards in the form of a humanitarian exemption, as has been requested for a long time by the humanitarian community. In this respect, sanctions designers have so far failed to fully factor IHL into sanctions regimes.
While sanctions increasingly include IHL violations as a sanction trigger, prohibitions set by sanctions regimes continue to impede humanitarian activities authorized and protected under IHL, for lack of effective humanitarian carve-outs. This paradox needs to be overcome, and sanctions designers should push the integration of IHL to its logical conclusion through the inclusion of humanitarian exemptions on a regime-by-regime basis.
Issues raised by derogations and the need to seek humanitarian exemptions
Sanctioning authorities have expressed some concerns about the inclusion of “blanket humanitarian exemptions” for fear that they could be abused.Footnote 128 In order to deal with the negative impact of sanctions on humanitarian actors, sanctioning authorities have almost exclusively resorted to the ad hoc inclusion of “derogations”, instead of exemptions, in their sanctions regimes. Derogations require humanitarian organizations to seek and obtain ad hoc authorizations from a specific sanctioning authority (such as the sanctions committees for UN sanctions or a “national competent authority” for EU sanctions) as a precondition before undertaking any humanitarian activities that could be interpreted as contrary to sanctions regimes.
Derogations raise several issues for humanitarian action. First, they are disconnected from the reality of humanitarian action and are complex, bureaucratic and time-consuming, with a significant negative impact on humanitarian organizations’ operational responsiveness and continuity. Second, derogations in sanctions regimes also share a troubling common feature: they are discretionary, therefore making humanitarian organizations dependent on sanctioning authorities’ will.
Third, there is little guidance available on how derogations procedures work across different sanctions regimes. Sanctioning authorities often have different opinions on the scope and modalities of derogations processing. For instance, humanitarian actors do not know whether derogations made available under a specific regime will cover the entirety of their operations for a given time frame or whether derogations should be requested for each and every activity to be undertaken. At the EU level, questions remain as to who qualifies as the “national competent authority” entitled to provide derogations. For impartial humanitarian organizations sitting outside the EU but receiving funds from the EU or EU member States, determining from which authority the organization should seek a derogation can be even more confusing: when a specific activity is funded by various EU member States, who should be the addressee of the derogation request? The main donor? All EU donors? What if one donor answers positively but not another? What if one EU member State gives a one-year derogation covering all humanitarian activities in a given context while another member State authorizes only a one-off specific activity for a limited time span? Such a lack of predictability is detrimental to an effective humanitarian response and, in addition, is likely to perpetuate de-risking or over-compliance policies by the private sector.
Fourth, derogations are ineffective because, in practice, they often lead to disproportionate delays for the import of goods/materials necessary for humanitarian action, limiting the ability of humanitarian actors to be as responsive and agile as possible in situations of emergency such as armed conflicts. Therefore, they are very likely to be unworkable for large-scale humanitarian operations.
Fifth, derogations can affect the perception of a humanitarian organization as a truly neutral, impartial and independent organization and ultimately lead to increased security risks. Asking permission from a sanctioning authority belonging to a third State/international organization in order to deliver humanitarian activities already agreed upon by the belligerents is likely to associate the humanitarian organization concerned with the political agenda borne by sanctions, and would inevitably result in the shrinking of the humanitarian space.
Finally, derogation systems raise serious concerns in terms of compatibility with IHL. Under IHL rules governing humanitarian access, the ability to consent to humanitarian activities carried out by impartial humanitarian organizations lies exclusively with the belligerents concerned, not with non-belligerent States (with the exception of States of transit). In that regard, derogations add a layer of consent to impartial humanitarian action not foreseen by IHL. IHL foresees that these States have an obligation to facilitate the activities of impartial humanitarian organizations, a function that derogations do not fulfil.Footnote 129 Also, derogations significantly restrict the right to offer services to which impartial humanitarian organizations are entitled under IHL, as they introduce a precondition (getting authorization from sanctions enforcers before placing an offer of services) that has no legal basis under this body of law. Lastly, not making use of available derogations would increase the risk of violating a sanctions regime and therefore the risk of prosecution for humanitarian personnel involved in activities foreseen and protected by IHL. Derogation systems therefore put States and international organizations designing and enforcing sanctions in a position at odds with their legal obligations under IHL.
In light of the above, the inclusion of derogations in sanctions regimes does not appear to be an appropriate solution. Instead, the inclusion of standing and well-framed humanitarian exemptionsFootnote 130 must be favoured in order to effectively mitigate the negative impact of sanctions regimes.
Designing sanctions regimes in accordance with IHL
While States are free to include humanitarian exemptions in their autonomous sanctions,Footnote 131 they remain hesitant to include such measures in the domestic legislation incorporating international sanctions, including States usually championing principled humanitarian action. States often go beyond the measures prescribed by international sanctions regimes, but they are more reluctant to formulate carve-outs where the international sanctions regime does not expressly foresee them.
This reluctance is often based on the perception that, by operation of Articles 25 and 103 of the UN Charter, sanctions designed by the UN Security Council always prevail over any other international obligations – including IHL ones – binding upon the implementing States. As a result, States may consider that granting humanitarian safeguards would result in, or be perceived as, not complying with a decision of the Security Council.Footnote 132
This perception privileging sanctions at the expense of IHL can be overcome, as States are in fact able to insert effective humanitarian carve-outs when giving effect to international sanctions regimes. There are cogent legal reasons to consider that States can introduce humanitarian exemptions when implementing international sanctions, as the latter's operation does not annihilate States’ obligations under IHL.
Indeed, under Article 24 of the UN Charter, secondary UN law such as Security Council resolutions must be interpreted in line with the “Purposes and Principles” laid down in the Charter's Articles 1 and 2. In this regard, when discharging its duties regarding the maintenance of international peace and security (including through sanctions as foreseen by Article 41 of the Charter), the Security Council is expected to act in “conformity with international law” as required by the combined operation of Articles 1(1) and 24(2) of the Charter, and therefore to design sanctions in compliance with IHL. On this basis, there must be a presumption that the Security Council does not intend to impose any obligation on States to breach fundamental IHL rules when implementing UN sanctions regimes.Footnote 133 In light of the important role played by the UN in promoting and calling for respect of IHL, very clear language would need to be used were the Security Council to intend States to take measures inconsistent with IHL when implementing UN sanctions. Therefore, if not clearly provided in a Security Council resolution under Chapter VII of the Charter, IHL cannot be derogated or suspended by the Security Council when establishing sanctions. Current Security Council resolutions establishing sanctions do not indicate any intention to impose obligations that would violate IHL rules governing humanitarian activities. Rather, violations of IHL rules concerning humanitarian access and activities are often the basis for the designation of an individual or entity under sanctions lists. It is therefore to be expected that Security Council resolutions establishing or renewing sanctions regimes be interpreted in harmony with IHL, as reflected recently in the resolutions renewing sanctions applicable to the DRC, CAR and Mali.
Similarly, EU autonomous “restrictive measures”, which are the equivalent at EU level of international sanctions, would also allow EU member States to provide humanitarian exemptions. Indeed, from an international law viewpoint, EU sanctions generally constitute countermeasuresFootnote 134 even if regional organizations typically refrain from explicitly qualifying their sanctions as such. In order to be considered lawful under international law, countermeasures must satisfy certain conditions as highlighted by the International Law Commission (ILC) in its Draft Articles on Responsibility of States for Internationally Wrongful Acts and Draft Articles on the Responsibility of International Organizations.Footnote 135 Notably, countermeasures must not affect “obligations for the protection of human rights, … obligations of a humanitarian character prohibiting reprisals and other obligations under peremptory norms of general international law”.Footnote 136 In addition, EU treaty law underlines the EU's commitment to a “strict observance of international law” in its relations with the wider world,Footnote 137 and that “the Union's action on the international scene shall be guided by … respect for the principles of … international law”.Footnote 138 Since EU restrictive measures are an essential tool in the EU's common foreign and security policy,Footnote 139 they must therefore comply with IHL as an integral part of the EU's obligations to comply with international law. In addition, the EU Council has affirmed on various occasions that EU restrictive measures must be designed in accordance with IHL.Footnote 140
Certain States, including Slovakia and Switzerland, have already taken action in this regard and have introduced in their domestic legislation a humanitarian exemption, including for international sanctions regimes not expressly foreseeing such caveats.Footnote 141
The way forward: Inclusion of humanitarian exemptions based on IHL language
As noted above, sanctioning authorities often express the concern that carve-outs introduced into sanctions regimes, in the form of humanitarian exemptions, could be abused. They emphasize the uncertainty surrounding the notion of “humanitarian organization” as the reason for identifying which organizations may rely on such exemptions. In parallel, humanitarian actors have sometimes considered humanitarian exemptions with suspicion, arguing that they would not be necessaryFootnote 142 and could be used as a pretext to deny humanitarian action in situations where there were no exemptions, implying that exemptions would always be necessary for humanitarian organizations to operate in contexts subject to sanctions.Footnote 143
The call for a well-framed and standing exemption
To be effective and accepted, humanitarian exemptions must address these two opposing concerns. IHL can address these concerns and provides clear indicative criteria for determining the organizations and activities that qualify for the humanitarian exemptions introduced into sanctions regimes.
On the basis of the IHL rules addressing humanitarian activities and actors in armed conflicts, one can see that “blanket” exemptions covering each and every – more or less – organized structure claiming a humanitarian status would be off the table. Instead, based on IHL-related language, a narrower approach in terms of the personal and material scope of application of the humanitarian exemption should be considered. This approach would allow CT and sanctions authorities to identify clearly appropriate beneficiaries of the exemption. Structures that do not comply with a principled humanitarian approach, or loose associations of individuals styling themselves as humanitarian organizations, would thus not be covered by such a humanitarian exemption.
Therefore, the inclusion of “well-framed and standing humanitarian exemptions” whose objective is to exclude from the scope of CT measures and sanctions regimes the exclusively humanitarian activities carried out by impartial humanitarian organizations in accordance with IHL is to be advocated.Footnote 144
What would make an exemption “well-framed and standing”?
The material scope of the humanitarian exemptions needs to accurately reflect the action protected under IHL. IHL regulates and protects “humanitarian activities” undertaken by “impartial humanitarian organizations” such as the ICRC.Footnote 145 This material scope is broader than that recently included in CT criminal legislation, which is often limited to “humanitarian assistance” or to “humanitarian aid”. These notions are generally not defined in these laws and appear to be too narrow in light of IHL.
What activities must the exemption protect?
When drafting the Geneva Conventions and their Additional Protocols, the High Contracting Parties deliberately did not specify which activities may qualify as humanitarian. This is due not only to the difficulty of anticipating the humanitarian needs that might arise as a result of a particular armed conflict, but also because the nature of armed conflict may change and so too may the humanitarian needs arising, and hence the activities that may be offered by impartial humanitarian organizations. However, an indication of what qualifies as “humanitarian” can be found in the definition of the Fundamental Principle of “humanity”. This is the first of the seven Fundamental Principles of the International Red Cross and Red Crescent Movement (the Movement) to which the ICRC belongs. From the definition, it can be inferred that humanitarian activities are all activities that “prevent and alleviate human suffering wherever it may be found” and the purpose of which is to “protect life and health and to ensure respect for the human being”.
Under IHL applicable to international armed conflict, common Article 9/9/9/10 allows the ICRC or another impartial humanitarian organization to offer to undertake “humanitarian activities” for the “protection” and “relief” of certain categories of persons affected by armed conflict. In terms of terminology, it has become accepted that “humanitarian relief” is synonymous with “humanitarian assistance” and “humanitarian aid”.
Common Article 3, applicable in NIACs, states concisely that an impartial humanitarian body may offer “its services”. The notion of “services” is not defined in common Article 3, but the humanitarian needs engendered by an armed conflict are likely to be very much the same regardless of the conflict's legal qualification. Thus, absent any indication to the contrary, the term “services” in common Article 3 should be interpreted broadly, encompassing all types of humanitarian activities required to meet the needs of all persons affected by the armed conflict.
Therefore, while IHL does not specifically define the notion of “humanitarian activities”, these should be interpreted as an umbrella notion encompassing both an assistance and a protection dimension. This has been made clear notably by Article 81 of Additional Protocol I, which requires the parties to an armed conflict to “grant all facilities to the ICRC to carry out its humanitarian functions in order to ensure protection and assistance to victims of armed conflict”.
Concerning protection activities, IHL does not provide specific guidance on which activities impartial humanitarian organizations may deploy to ensure that the parties to an armed conflict “protect” people by complying with the applicable legal framework. For the ICRC and the Inter-Agency Standing Committee, the concept of “protection” encompasses all activities aimed at ensuring full respect for the rights of the individual in accordance with the letter and spirit of the relevant bodies of law, including IHL, international human rights and refugee law. Accordingly, in the context of IHL, “protection activities” refer to all activities that seek to ensure that the authorities and other relevant actors fulfil their obligations to uphold the rights of individuals.
In this regard, the notion of “protection activities” includes activities which seek to put an end to or prevent the (re)occurrence of violations of IHL (for example, by making representations to the authorities, or by making the law better known through dissemination of IHL to all the parties to the armed conflict) and activities which seek to ensure that the authorities cease or put a stop to any violations of the norms applicable to them.
Concerning assistance/relief activities, the term refers to all activities and services which seek to ensure that persons caught up in an armed conflict can survive and live in dignity, including the delivery of goods to that end. Such activities are carried out primarily in the fields of health care, water, habitat (i.e., all that relates to the creation of a sustainable living environment) and economic security (defined by the ICRC as “the condition of an individual, household or community that is able to cover its essential needs and unavoidable expenditures in a sustainable manner, according to its cultural standards”).
In practice, the type of relief activities will differ depending on who the beneficiaries are and the nature of their needs. Relief activities for persons wounded on the battlefield, for example, will not be the same as those undertaken for persons deprived of their liberty, and will also differ from those delivered in favour of the civilian population. It is one of the core principles of IHL that whatever the relief activity for persons not or no longer taking a direct part in hostilities, such activities should never be considered as being of a nature to reinforce the enemy's military capabilities – for example, the provision of medical aid to wounded fighters.
Thus, to fully comply with IHL, States must ensure that all their domestic CT measures and sanctions regimes are designed and interpreted in a way which does not restrict, impede, delay or criminalize the delivery of humanitarian activities as foreseen under IHL. Humanitarian exemptions should be formulated in a way that encompasses all activities of protection and assistance, and interpreted as such, even when the language only refers to the provision of humanitarian aid or humanitarian relief.
Lastly, the adverb “exclusively” indicates that the only objective pursed by the beneficiary of the exemption must be humanitarian in nature. If the presence and operations of the organization in question are motivated by other objectives, irrespective of their nature (for instance political, financial, military and a fortiori criminal), they would not be covered by the humanitarian exemption suggested.
What actors must the exemption protect?
For the purposes of the proposed humanitarian exemption, the aforementioned activities must also be carried out by an “impartial humanitarian organization”. To qualify as such, three conditions must be fulfilled.
First, the aim pursued by the organization eligible for the humanitarian exemption must be humanitarian. Even if self-explanatory, this indicates that the organization must follow exclusively humanitarian objectives and must act for the survival, well-being and dignity of all those affected by armed conflict.
Second, IHL, in particular the Geneva Conventions, requires a humanitarian organization wishing to operate in armed conflict to be “impartial”. ImpartialityFootnote 146 refers to the attitude to be adopted vis-à-vis the persons affected by the armed conflict when planning and implementing the proposed humanitarian activities. As one of the Movement's Fundamental Principles, impartiality is the requirement not to make any “discrimination as to nationality, race, religious beliefs, class or political opinions” or any other similar criteria. Further, the principle of impartiality, which has been endorsed by the International Court of Justice,Footnote 147 requires the components of the Movement to “endeavor to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress”.Footnote 148 As a matter of good practice, this definition is followed not only by the components of the Movement but also by actors outside the Movement.
For an organization to qualify as an “impartial humanitarian body”, it does not suffice for it to claim unilaterally that it qualifies as such: it needs to operate impartially at all times. In operational reality, it matters that the authorities to whom an offer of services is made perceive the organization to be both impartial and humanitarian in nature, and that they trust that the organization will behave accordingly.
The principle of impartiality applies to any humanitarian activity: only the needs of the persons affected by the conflict may inspire the proposals, priorities and decisions of humanitarian organizations when determining which activities to undertake and where and how to implement them (for example, who receives medical assistance first).
It should be noted that while humanitarian activities may also be performed by actors that do not qualify as impartial humanitarian organizations, and such activities may alleviate human suffering, they would nevertheless not be covered by the humanitarian exemption suggested.
Furthermore, the beneficiary of the humanitarian exemption must be an impartial humanitarian “organization” as required by IHL. Thus, a loose association of individuals, while their activities may alleviate human suffering, would not qualify on the basis of this provision, nor would a private person wishing to engage in charitable activities. A minimum structure is required for the “body” to be able to function as a humanitarian organization. In addition, at all times the organization ought to be capable of complying with professional standards for humanitarian activities.Footnote 149 Otherwise, in practice there is a risk that the authorities to whom the offer of services is made may doubt the impartial and humanitarian nature of the organization.
Finally, in order to enable impartial humanitarian organizations to deliver their activities in the most effective way without being concerned with interference by sanctions and CT measures, the humanitarian exemption should be designed to apply for a long time. Impartial humanitarian organizations need to operate in a stable and predictable legal environment. In this regard, in order to fulfil their function, humanitarian exemptions must be standing. This is a prerequisite in order to eradicate legal risks emanating from CT and sanctions legal frameworks. The durability of humanitarian exemptions guarantees legal security for impartial humanitarian organizations.
Interim mitigating approaches
While humanitarian exemptions represent the best tool for effectively protecting principled humanitarian action, humanitarian actors remain conscious of the fact that the inclusion of humanitarian exemptions across sanctions regimes will take time and concerted action/engagement. In the meantime, and with a view to ensuring protection for impartial humanitarian organizations, interim mitigating approaches could be considered by sanctioning authorities (even if they would never fulfil the function of effective humanitarian exemptions).
For instance, sanctioning authorities could consider the exclusion of liability for staff of impartial humanitarian organizations undertaking exclusively humanitarian activities in accordance with IHL. Alternatively, sanctions stakeholders could renounce or not prioritize enforcement against actions undertaken in the course of humanitarian activities by impartial humanitarian organizations which could otherwise be considered a violation of sanctions regimes.
Further, sanctioning authorities could draft clear guidance or interpretive guidance clarifying certain elements of the prohibitions established under sanctions regimes. They could, in particular, put forward an interpretation of the prohibition against making funds and economic resources available to listed individuals or entities that is in line with IHL and protective of impartial humanitarian organizations, and affirm that the diversion of humanitarian assistance is not an indirect provision of funds and economic resources to listed persons or entities in the context of sanctions regulations.
Sanctioning authorities could also underline in guidance documents that sanctions regimes must not impede exclusively humanitarian activities that are carried out by impartial humanitarian organizations in accordance with IHL, or indicate that sanctions are not intended to have adverse humanitarian consequences for the civilian population. Such guidance could also emphasize that for the purpose of carrying out humanitarian activities, the provision of funds, financial assets or economic resources to non-listed individuals or entities, such as line ministries, that act on behalf of, at the direction of or under the command or control of a listed individual or entity does not constitute prohibited activity under sanctions regimes.
Conclusion
The importance of upholding IHL and finding the balance between CT, sanctions and preserving principled humanitarian action cannot be overstated. What is at stake is the integrity of IHL and the interpretation and application of its most fundamental rules. Also at stake is the ability of humanitarian organizations to cross front lines and to carry out their activities in areas controlled by armed groups and individuals designated as terrorist. The ability of humanitarian actors to carry out their mandate is increasingly being hampered, and as a consequence, people suffer at the very moment when IHL should protect them. As this piece has tried to demonstrate, balanced solutions addressing the objectives of both sets of actors can be found. Humanitarian organizations and States/international organizations are currently experiencing a positive momentum and must seize this occasion to establish appropriate arrangements to ensure that effective humanitarian safeguards are lastingly introduced in CT and sanctions frameworks. We know it can be done, and we know it must be done.
