Countering the financing of terrorism: United Nations Security Council regulation

The UNSC has adopted a long sequence of legally binding decisions under chapter VII of the UN CharterFootnote ³ to counter terrorism financing. The sequence begins with the sanctions regime established under UNSC Resolution 1267 in 1999 in connection with the U.S. embassy bombings by Al-Qaeda in Tanzania and Kenya in 1998, and Resolution 1373 adopted a few days after the attacks of 11 September 2001.Footnote ⁴

Resolution 1267 first imposed an asset freeze and air embargo against the Taliban which was allowing territory under its control to be used to shelter and train terrorists and plan terrorist acts.Footnote ⁵ In 2000, the UNSC extended the asset freeze to Al-Qaeda,Footnote ⁶ and in 2002 it imposed an asset freeze, arms embargo and travel ban on both the Taliban and Al-Qaeda, as well as other individuals, groups, undertakings and entities associated with them.Footnote ⁷ In 2011, the UNSC adopted two resolutions – 1988 and 1989 – to split measures against the Taliban (falling under Resolution 1988) and against Al-Qaeda (falling under Resolution 1989). In 2015, the UNSC adopted Resolution 2253 to extend the latter regime to the Islamic State in Iraq and the Levant (ISIL).Footnote ⁸ This sanctions regime against Al-Qaeda and ISIL will be referred to as the 1267 regime.

Under the 1267 regime, the UNSC imposes a travel ban, an arms embargo and a freeze of listed entities’ funds and other financial assets or economic resources and a requirement to ensure that no funds, financial assets or economic resources are made available, directly or indirectly, for their benefit.Footnote ⁹ Economic resources include tangible or intangible assets of every kind that can potentially be used to obtain funds, goods or services.Footnote ¹⁰

The sanctions under the 1267 regime are “preventative in nature and are not reliant upon criminal standards set out under national law”;Footnote ¹¹ they require no mental element of intention or knowledge by the person carrying out a prohibited transaction and are a matter of strict liability. They apply alongside the broad preventative and criminalizing measures required in UNSC Resolution 1373 and reaffirmed in subsequent resolutions establishing a global counterterrorism regime.

In Resolution 1373, the UNSC decided, inter alia, that all States shall prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of terrorist organizations or individuals for any purpose, even in the absence of a link to a specific terrorist act.Footnote ¹² This is typically translated into regional and domestic sanctions, as will be described below.

Resolution 1373 also requires that States criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts. This is typically translated into regional and domestic criminal legislation, as shown below.

Resolution 1373 and subsequent resolutions reinforce and complement the criminalizing provisions of the 1999 International Convention for the Suppression of the Financing of Terrorism,Footnote ¹³ which states that a person commits an offence if by any means, directly or indirectly, unlawfully and wilfully, that person provides or collects funds with the intention that they should be used or in the knowledge that they are to be used in order to carry out a terrorist act.Footnote ¹⁴ It is not necessary to prove that the funds were actually used to carry out a terrorist act.

In 2019, the UNSC adopted Resolution 2462 and broadened the requirement to criminalize the financing of terrorism. It decided that all States shall criminalize:

The words “for any purpose … even in the absence of a link to a specific terrorist act” make the criminal act much broader than what is required under Resolution 1373 and the 1999 Convention, both of which require a link to a terrorist act.Footnote ¹⁶

Four months after adopting Resolution 2462, the UNSC adopted Resolution 2482 on linkages between international terrorism and organized crime. It recommended measures to address various facets of organized crime such as trafficking in persons, arms, drugs and cultural property, the illicit trade in natural resources and wildlife, and other criminal activities. While the interplay between these measures and humanitarian activities is less apparent, this resolution is highlighted here because of its explicit reference to compliance with IHL and humanitarian activities, as described below.

Alongside States’ domestic implementation of the 1267 sanctions regime, States have generally translated their other UNSC and 1999 Convention obligations to prohibit and to criminalize the financing of terrorism into two categories of regional or domestic regulation: first, sanctions consisting of asset freezes and the prohibition of making funds and economic resources available to individuals and groups designated as terrorist (even in the absence of any intent to support them); and second, the criminalization of financial support to such individuals and groups. For both sanctions and criminalization purposes, States will decide, through a regional body or individually, whom to designate as terrorist. As some examples below illustrate, domestic criminal regulation can be broader than what UN instruments require.

Without attempting to provide an exhaustive picture, below is an illustrative sampling of some regional and domestic counterterrorism measures that can trigger adverse effects for humanitarian activities in areas where designated groups are present. Some of these measures are taken by States in which humanitarian operations are carried out, while others are established far from where humanitarian activities take place, giving States a long reach, including through broad jurisdiction or implementation in donor agreements with humanitarian organizations.

Countering the financing of terrorism: Regional and domestic sanctions

A UN report published in 2020 found that more than sixty-five States had established domestic financial sanctions mechanisms pursuant to Resolution 1373; however, more than sixty States had not designated any individuals or entities or frozen any assets.Footnote ¹⁷ While a number of domestic sanctions regimes have been described elsewhere,Footnote ¹⁸ two in particular are highlighted here because their far reach and the role that they play in funding humanitarian operations can have important adverse consequences for humanitarian activities.

To implement Resolution 1373, the European Union (EU) adopted Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism.Footnote ¹⁹ It requires the European Community to “ensure that funds, financial assets or economic resources or financial or other related services will not be made available, directly or indirectly, for the benefit of persons, groups and entities listed in the Annex”.Footnote ²⁰

In addition to this sanctions regime implementing UNSC Resolution 1373, EU counterterrorism sanctions comprise the 1267 regimeFootnote ²¹ as well as a distinct autonomous financial sanctions regime against persons and entities associated with or supporting Al-Qaeda and ISIL.Footnote ²² This autonomous regime also requires that “[n]o funds, other financial assets or economic resources shall be made available, directly or indirectly to or for the benefit of the natural or legal persons” who are listed.

These EU sanctions have a long reach: they directly apply in EU territory, to any EU national, and to any legal person incorporated or constituted under the law of an EU Member State or doing business within the EU.Footnote ²³ Some EU countries may also have their own distinct domestic sanctions and lists of persons and entities connected with terrorism that they implement on top of EU ones.Footnote ²⁴

In the United States (US), “specially designated global terrorists” (SDGTs) are designated by the Department of State and the Department of Treasury pursuant to Executive Order 13224,Footnote ²⁵ which was adopted days after the attacks on 11 September 2001 and subsequently amended. These counterterrorism sanctions implement the 1267 sanctions regime as well as the financial transaction prohibitions of UNSC Resolution 1373.

A SDGT's assets are frozen and it is prohibited to transact or deal in their assets, which includes making any contribution of funds, goods or services to or for the benefit of a SDGT.Footnote ²⁶ This prohibition also has a long reach: It applies to any transaction in the US and to any US citizen, permanent resident alien, entity organized under the laws of the US including foreign branches, and any person in the US.Footnote ²⁷

Countering the financing of terrorism: Regional and domestic criminalization

While some criminal jurisdictions require intention or knowledge that the funds will be used to carry out a terrorist act, others require intention or knowledge that they are to be used for the benefit of terrorist organizations or individual terrorists for any purpose.Footnote ²⁸ In a number of jurisdictions, the scope of the criminal offence will also extend beyond financial support to cover all forms of material support. As will be discussed in the upcoming section on consequences of counterterrorism regulation on impartial humanitarian activities, humanitarian organizations face real risks of falling foul of legislation that broadly criminalizes financial or material support to designated entities for any purpose.

In Nigeria, section 13 of the Terrorism (Prevention) (Amendment) Act 2013 Footnote ²⁹ makes it an offence to provide funds, property or other services by any means to terrorist groups, directly or indirectly, with the intention or knowledge or having reasonable grounds to believe that such funds or property will be used to commit a terrorist offence, even if the funds or property were not actually used to commit the offence.

In the EU, Member States are required to criminalize the following acts, when committed intentionally: supplying information or material resources to a terrorist group, or funding its activities in any way, with knowledge that such participation will contribute to the criminal activities of the terrorist group.Footnote ³⁰ Individual EU Member States also have their own domestic legislation criminalizing support to terrorism.Footnote ³¹

In Australia, a person commits an offence if they intentionally make funds available to a terrorist organization, whether directly or indirectly, and the person is simply reckless as to whether the organization is a terrorist organization.Footnote ³² It is also an offence for any person to intentionally provide to a terrorist organization support or resources that would help it engage in preparing, planning, assisting in or fostering the commission of a terrorist act when the person knows or is reckless to whether the organization is a terrorist organization.Footnote ³³

In the US, “foreign terrorist organizations” (FTOs) are designated by the Secretary of State under the Immigration and Nationality Act of 1952 (as amended).Footnote ³⁴ Once an entity is so designated, it is a crime to knowingly provide material support or resources to it, irrespective of any intention to support the FTO in committing a terrorist act or whether the support or resources actually help the FTO carry out a terrorist activity.Footnote ³⁵ “Material support or resources” is defined as “any property, tangible or intangible, or service”, and includes currency or monetary instruments, training, and expert advice or assistance, but not medicine or religious materials.Footnote ³⁶ This legislation broadly applies to US nationals and residents wherever they are, persons who commit the offence in whole or in part in the US, as well as persons who commit the offence outside the US but subsequently set foot in the US.Footnote ³⁷

Some additional examples of domestic criminalization of support to terrorism are described below in part II (“International humanitarian law and humanitarian safeguards in United Nations Security Council resolutions 2462 and 2482”).

Preventing, suppressing and criminalizing “foreign terrorist fighters”

Beyond countering the financing of terrorism, in 2014, the UNSC adopted Resolution 2178 requiring that States prevent and suppress the recruiting, organizing, transporting or equipping of “foreign terrorist fighters”, and the financing of their travel and of their activities in a manner consistent with international human rights, refugee and humanitarian law.Footnote ³⁸ The resolution describes foreign terrorist fighters as individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict.Footnote ³⁹ The resolution also requires States to establish criminal offences to prosecute, inter alia, nationals who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories to a State other than their States of residence or nationality, for any of these purposes.Footnote ⁴⁰

States have adopted legislation to criminalize the recruitment of foreign terrorist fighters, as well as their travel, training, and participation in fighting in line with Resolution 2178. For instance, the Australian Criminal Code makes it an offence for a citizen to enter a foreign country and engage in or have the intention of engaging in a terrorist act in that or another foreign country.Footnote ⁴¹ Some countries have laws in place to prevent persons from leaving the country if they are suspected of travelling to carry out terrorist activities.Footnote ⁴² Some have also considered incorporating preventive measures in their legislation to revoke travel documents or issue orders to restrict movement and other social activities.Footnote ⁴³

States have also regulated beyond what is required under Resolution 2178 by creating travel-related offences that do not require any purpose of perpetrating, planning, preparing or participating in terrorist acts, or providing or receiving terrorist training. Criminal legislation that makes it an offence to enter or remain in an area because of a risk of terrorism and does not require any terrorism-related purpose can potentially pose difficult challenges for humanitarians. For instance, in addition to implementing obligations under Resolution 2178, the United Kingdom's (UK) Counter-Terrorism and Border Security Act 2019 allows the Secretary of State to designate an area outside the UK if it is necessary to restrict nationals and residents from entering or remaining in that area in order to protect the public from a risk of terrorism. It is an offence for such a person to enter or remain in a designated area.Footnote ⁴⁴ This is understood to be a response to the difficulty of finding the evidence to prosecute nationals who return from Iraq or Syria where they have allegedly carried out terrorist acts.Footnote ⁴⁵ AustraliaFootnote ⁴⁶ and DenmarkFootnote ⁴⁷ have introduced similar offences in their legislation, and the Netherlands has been considering creating one.Footnote ⁴⁸

As explained in the next section, the adverse consequences of the above-described counterterrorism measures on humanitarian activities can be significant. As will be discussed later in part II (“International humanitarian law and humanitarian safeguards in United Nations Security Council resolutions 2462 and 2482”), some of these and other national measures have incorporated safeguards ensuring that impartial humanitarian activities can be carried out as foreseen by IHL.

Direct application of sanctions and criminal regulation

When UN, regional and domestic sanctions prohibit making any funds, financial assets or economic resources available, even indirectly, to listed entities regardless of the purpose of the contribution and without requiring any intention to support them, these sanctions can capture humanitarian assistance to individuals who are not or no longer fighting and are members of a designated group, as well as incidental payments to listed entities made by humanitarian organizations in the course of their activities. Even with efforts to prevent diversion of humanitarian assets,Footnote ⁵² these sanctions are also broad enough to cover humanitarian supplies that are diverted to and benefit a designated group.Footnote ⁵³ European humanitarian non-governmental organizations (NGOs) have reported that the most significant threat to their organizations is the risk of severe legal consequences for “unintentional or ill-informed breaches” of counterterrorism sanctions requirements.Footnote ⁵⁴

Humanitarian and medical organizations and personnel may also have concerns about themselves being designated under sanctions because of their own activities. For instance, under the 1267 sanctions regime, activities for which an individual or group is eligible for listing include “otherwise supporting” an individual, group, undertaking or entity associated with ISIL or Al-Qaeda. However, listing a humanitarian organization for carrying out humanitarian activities in line with IHL is unlikely under the 1267 regime because the practice of States has been to target an entirely different category of entities and support activities.Footnote ⁵⁵

Also present is a risk of humanitarian organizations violating criminal legislation that broadly criminalizes financial or material support to a designated group for any purpose and only requires knowledge that the support is being provided to a designated group. Such a risk is not theoretical. In 2010, the US Supreme Court considered that teaching designed to impart a specific skill to a designated terrorist group – in this case training in IHL – constituted knowingly providing material support.Footnote ⁵⁶

With respect to the provision of medical care, a report published in 2018 revealed that among sixteen countries surveyed, “practices in at least 10 countries appear to suggest that the authorities interpret support to terrorism to include the provision of healthcare”. It added that “the counter-terrorism framework has purportedly strengthened the legal and moral basis to justify [the criminalization of healthcare]”.Footnote ⁵⁷ Legal proceedings have been instituted in a number of countries for supporting terrorism through medical activities.Footnote ⁵⁸ For instance, under Iraqi national law on combating terrorism, charges have been brought against doctors working in hospitals in territories held by Islamic State in Iraq and Syria (ISIS).Footnote ⁵⁹ In the US, a medical doctor who had volunteered as a medic in the Al-Qaeda military structure to treat injured fighters was convicted of conspiring to provide, and providing or attempting to provide, material support under the direction or control of a terrorist organization.Footnote ⁶⁰ In Syria, hundreds of doctors and nurses have been arrested for providing medical assistance in an opposition area.Footnote ⁶¹

Donor conditions

In addition to the risk of humanitarian operations falling foul of counterterrorism sanctions and criminal legislation, humanitarian organizations are often constrained by clauses that donor States include in their funding agreements. To comply with applicable UN, regional and domestic counterterrorism regulation, donor States translate this into stringent conditions so that the funds they transfer to humanitarian organizations do not benefit listed entities.Footnote ⁶² According to a survey by the humanitarian NGO network VOICE, donor requirements related to counterterrorism sanctions were reportedly stricter in the US than in the EU.Footnote ⁶³ At times donor conditions are even stricter than what counterterrorism regulation requires.

For instance, the US Agency for International Development (USAID) requires a Certification Regarding Support to Terrorists, by which the funding recipient represents that they “did not, within the previous three years, knowingly engage in transactions with, or provide material support or resources to, any individual or entity who was, at the time, subject to” US counterterrorism or UNSC sanctions.Footnote ⁶⁴ USAID also incorporates a standard provision in its agreements with US and non-US NGOs, by which the recipient agrees not to “engage in transactions with, or provide resources or support to, any individual or entity that is subject to” US or UN sanctions.Footnote ⁶⁵ Such clauses require humanitarian organizations to be aware of applicable counterterrorism regulations and take steps to ensure that they comply with them. But, when humanitarian organizations carry out activities where listed groups are present, the requirement to strictly avoid any such transactions or the provision of resources or support can preclude impartial humanitarian activities even when these are explicitly allowed under IHL.

Some donor clauses require that the recipient use its best endeavours or take appropriate steps to ensure that the funds are not used to support listed groups.Footnote ⁶⁶ Even under this standard, however, a condition that ultimately precludes humanitarian assistance to certain individuals or entities solely based on their designation would not be compatible with IHL rules that explicitly foresee impartial humanitarian services for persons who are not or no longer fighting, and who include all civilians as well as wounded, sick or detained fighters regardless of any terrorist designation. Moreover, such a condition would undermine the impartiality and non-discrimination by which humanitarian organizations are expected to operate under IHL.

As another example, in its funding agreements for humanitarian operations in Nigeria, USAID included a clause aimed at preventing any funds from benefitting Boko Haram. It asked recipients to

Requiring such approval would undermine the ability of a humanitarian organization to conduct its operations with independence and neutrality, which are necessary to build trust and acceptance among parties to the conflict, communities and recipients.Footnote ⁶⁸ Denying approval for persons who are nevertheless entitled to humanitarian assistance under IHL would undermine the organization's ability to conduct operations impartially and without discrimination (i.e. strictly according to needs), and would be incompatible with IHL.

Donor agreements will often require that the obligations they impose be passed on to implementing partners, contractors, or sub-grantees, and require notification when a transaction has been linked to a designated group. Complying with multiple counterterrorism-related donor conditions has entailed time-consuming and costly administrative, legal and risk management processes for humanitarian organizations. Smaller organizations typically do not have the same resources or capacity as bigger ones.Footnote ⁶⁹

De-risking

Humanitarian organizations rely on banks to receive funds from donors and transfer them to areas of operation. Yet States’ counterterrorism regulations, with which banks must equally comply or else risk liability, have led them to decline to provide financial services to humanitarian organizations who carry out activities where designated entities are present – a practice called “de-risking”. For fear of violating the law and being exposed to fines and other legal and reputational repercussions, banks have declined to open accounts, have frozen or closed them, and delayed and blocked financial transactions.Footnote ⁷⁰ In turn this has led humanitarian organizations to delay, reduce or even cease some activities, and resort to informal money transfer channels for their operations.Footnote ⁷¹ According to the NGO network VOICE, bank de-risking issues such as blocked or delayed transactions and returned funds were the highest ranking impediments reported by European NGOs as a result of counterterrorism and other types of sanctions.Footnote ⁷² Similar difficulties have been reported with other parts of the private sector, such as insurance and credit card services,Footnote ⁷³ or with importing supplies such as medicine into areas where designated entities operate.Footnote ⁷⁴ In this respect, too, smaller organizations will face greater challenges because they lack the resources to manage related administrative burdens.Footnote ⁷⁵

Measures against “foreign terrorist fighters”

With the adoption of UNSC Resolution 2178, experts posited that humanitarian organizations might face new restrictions on travel, increased scrutiny over their communications with certain areas, additional donor requirements in relation to humanitarian operations where designated entities have control, or heightened review procedures and reticence from banks to provide financial services.Footnote ⁷⁶ Of particular risk to humanitarians are travel offences that do not require any terrorism-related purpose and make it an offence to enter or remain in an area because of a risk of terrorism.Footnote ⁷⁷ Among other concerns for humanitarians, legislation allowing a government to determine for security reasons whether humanitarian personnel can travel to and carry out activities in a certain area can undermine their actual and perceived independence, neutrality and impartiality and preclude impartial humanitarian activities that are allowed under IHL.Footnote ⁷⁸

Chilling effect

The above-described legal risks, donor conditions and administrative burdens stemming from counterterrorism regulation have generated a “chilling effect”, causing humanitarian organizations to overcorrect by limiting or withdrawing their activities in areas where designated groups operate even if humanitarian needs are high.Footnote ⁷⁹ This can deprive people in need of humanitarian services and undermine the ability of humanitarian organizations to operate in an impartial manner.Footnote ⁸⁰

Over the past decade, humanitarian organizations, academic institutions, think tanks, various components of the UN and States have devoted great effort to raising awareness of the adverse impact of counterterrorism measures on humanitarian activities and advocating for adequate safeguards against it. Academic studies have been conducted,Footnote ⁸¹ UN and NGO reports and think tank papers published,Footnote ⁸² and expert meetings,Footnote ⁸³ high-level and Security Council events convened.Footnote ⁸⁴ In an effort to correct course and remedy the negative effects described above, as explained in part II (“International humanitarian law and humanitarian safeguards in United Nations Security Council resolutions 2462 and 2482”), the UNSC has begun to incorporate requirements to comply with IHL and safeguards for impartial humanitarian activities, including medical activities, in its counterterrorism resolutions.

Creating legally binding obligations

Under Article 25 of the UN Charter, “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. It is generally accepted that when the Council uses the verb “decides” in a resolution, it is making a decision and thus creating a legally binding obligation.Footnote ⁹² As “demand” denotes an authoritative and insistent command (in French, for instance, the corresponding word is “exige”), it can also be interpreted as a decision. As one author has written, “whenever the Security Council uses firm language (such as ‘decides’, ‘demands’, ‘orders’) in contrast to a mere ‘calling upon’, ‘urging’ or ‘requesting’, this can be seen as an implied use of its authority to make legally binding decisions…”.Footnote ⁹³

Both operative paragraphs 5 and 6 of Resolution 2462 can therefore be interpreted as creating legally binding obligations.Footnote ⁹⁴ However, paragraph 5 is narrower in scope than paragraph 6. The former requires that the criminalization of terrorism financing be consistent with a State's obligations under IHL. The latter demands that States ensure that all counterterrorism measures comply with IHL. Paragraph 6 therefore encompasses a much broader set of actions, including, inter alia, economic sanctions, measures criminalizing material support to terrorism, and travel-related measures.Footnote ⁹⁵

In contrast to “decides” and “demands”, the term “urges” used in paragraph 16 of Resolution 2482 is not understood as creating a legal obligation. Experts on UNSC practice have written, “it can be clearly established that by using ‘urges’ and ‘invites,’ as opposed to ‘decides,’ the paragraph is intended to be exhortatory and not binding”.Footnote ⁹⁶ The reason for this looser language may lie, at least in part, in the fact that paragraph 16 of Resolution 2482 incorporates an additional element not found in paragraphs 5 and 6 of Resolution 2462 and discussed below.Footnote ⁹⁷ It is worth noting that paragraph 16 of Resolution 2482 also covers all measures to counter terrorism.

No conflict with international humanitarian law obligations

Before examining with which obligations of IHL these operative paragraphs require consistency or compliance and how this relates to preventing the adverse consequences for humanitarian activities described earlier, it can be relevant to address a recurrent query about potential conflicts between States’ IHL obligations and legally binding UNSC decisions, such as the requirement to take measures to counter terrorism.

Article 103 of the UN Charter states that “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” The phrase “obligations of the Members of the UN under the Charter” is commonly interpreted as including decisions of the UNSC, as described above.Footnote ⁹⁸ However, peremptory normsFootnote ⁹⁹ of international law (or jus cogens), which include the basic rules of IHLFootnote ¹⁰⁰ and in particular Article 3 common to the four Geneva Conventions,Footnote ¹⁰¹ may not be overridden by a legally binding decision of the UNSC. As Judge ad hoc Lauterpacht wrote in a separate opinion in the Genocide Case before the International Court of Justice:

On the interplay of UNSC powers and IHL obligations specifically, one scholar has written:

Another expert has added, “the provisions of the Geneva Conventions and their Additional Protocols on relief actions for the benefit of specially vulnerable groups threatened by starvation also belong to that category of absolutely binding obligations”.Footnote ¹⁰⁴

Even where treaty obligations are not peremptory, judges and scholars have advocated an interpretation approach that avoids a conflict between a State's obligations under the Charter and its other treaty obligations. It has been recommended that:

Put slightly differently,

The European Court of Human RightsFootnote ¹⁰⁷ and a member of the UN Human Rights Committee have applied this approach in the case of international human rights law, which shares many of the same aims and even expresses some of the same rules as IHL.

Taken together, the peremptory nature of IHL rules, the interpretive approach of avoiding a conflict between Charter and other treaty obligations, and the legally binding requirement in Resolution 2462 that States’ counterterrorism measures be consistent/comply with IHL, make it clear that UNSC counterterrorism requirements and States’ IHL obligations coexist, and the former do not override the latter.Footnote ¹⁰⁸

Humanitarian activities

To recall, IHL governs hostilities wherever they take place on the territory of the affected State, and its rules on humanitarian activities and medical care and treatment in connection with the conflict apply wherever persons affected by the conflict are located.Footnote ¹¹¹ IHL equally applies when hostilities between parties to a NIAC and their effects span neighbouring countries (e.g. in Syria and Iraq; in Mali, Burkina Faso and Niger; in Nigeria, Niger, Chad and Cameroon).

In a NIAC, which necessarily involves the participation of one or more non-State armed groups, IHL explicitly allows an impartial humanitarian body to offer its services to the parties for the benefit of persons who are not or no longer fighting, including civilians and fighters who are wounded, sick or detained.Footnote ¹¹² Humanitarian activities can include assistance to provide food and medicine, repair systems for water supply and treatment, build medical facilities, and clear mines and unexploded ordnance. Protection activities, such as visits to persons deprived of their liberty, aim to ensure that parties to conflict respect their obligations under IHL.Footnote ¹¹³

An impartial humanitarian body or organization (or “actor” as mentioned in resolutions 2462 and 2482) must have a minimum of structure and capacity to meet professional standards for humanitarian activities. The profit-making nature of a company will preclude it from qualifying as an impartial humanitarian body.Footnote ¹¹⁴ To be able to offer its services under IHL, a humanitarian organization must operate impartially at all times, including during planning and implementation of a humanitarian activity. Impartiality requires that proposals, priorities and decisions on humanitarian activities be guided solely by and in proportion to the need of affected persons.Footnote ¹¹⁵ It also requires that humanitarian activities be carried out without discrimination on the basis of nationality, race, religious beliefs, class or political opinions or similar criteria.

Offers of humanitarian services are not considered unlawful interference in the armed conflict or an unfriendly act.Footnote ¹¹⁶ Nor are they considered to be recognition of or support to a party to the conflict. This, combined with the fact that IHL explicitly allows impartial humanitarian organizations to offer their services, should thus preclude the prohibition or criminalization of such offers of services or their implementation.Footnote ¹¹⁷ In addition, IHL states that the right to offer humanitarian services does not affect the legal status of the parties to the conflict.Footnote ¹¹⁸ In other words, it “does not limit the government's right to fight a non-State armed group using all lawful means; and it does not affect its right to prosecute, try and sentence its adversaries for their crimes”.Footnote ¹¹⁹ This also reinforces the fact that IHL applies independently of whether a non-State armed group has been designated as terrorist under domestic law.Footnote ¹²⁰

Whenever offers of humanitarian services are made in NIAC, consent must be obtainedFootnote ¹²¹ from the State in whose territory the humanitarian operations are intended or transit. Parties to a conflict may have reservations about accepting humanitarian services. They may worry that humanitarian relief destined for a population under the control of the enemy may indirectly favour the enemy and enhance the latter's chances of success,Footnote ¹²² or that humanitarian convoys are delivering weapons, not humanitarian assistance.Footnote ¹²³ IHL factors in parties’ security concerns but balances them against humanitarian ones. Although the requirement of obtaining State consent is rooted in a concern to protect a State's sovereignty, this does not entail that the State has absolute and unlimited discretion to withhold consent. As a matter of customary law, when civilians’ essential needs are not being met and offers of impartial humanitarian relief operations have been made, a State may not withhold its consent arbitrarily.Footnote ¹²⁴

Once consent to the presence and operations of an impartial humanitarian organization has been obtained, humanitarian organizations will typically enter into practical working-level contacts and arrangements with the parties – including armed groups that may be designated – as are operationally necessary to carry out humanitarian operations. When humanitarian activities consist of reliefFootnote ¹²⁵ operations, as a matter of customary IHL in any type of armed conflict, the parties must allow and facilitate rapid and unimpeded passage of humanitarian relief consignments, equipment and personnel to reach civilians in need, even in areas controlled by designated groups. The parties must ensure the freedom of movement of humanitarian personnel that is essential to the exercise of their functions,Footnote ¹²⁶ and it is only in case of “imperative military necessity” that their activities may be limited or their movements may be temporarily restricted.Footnote ¹²⁷

IHL also has some built-in safeguards to protect the parties’ security interests.Footnote ¹²⁸ The parties can prescribe measures of control for the passage of humanitarian relief. They can impose technical arrangements such as the search of consignments to verify that relief consignments are exclusively humanitarian (for example, that they do not contain equipment that could be used for military purposes), the use of prescribed routes at specific times so that relief convoys do not interfere with and are not endangered by military operations, or measures to ensure that medical supplies and equipment comply with health and safety standards.Footnote ¹²⁹ In addition, the parties to an armed conflict may make passage of humanitarian relief consignments conditional on their distribution under the local supervision of an impartial organization or on other measures to ensure that the supplies will reach their intended beneficiaries.Footnote ¹³⁰ This demonstrates how IHL has factored in parties’ concerns about the risk of diversion and misappropriation of supplies and support to enemy fighters.

Relevant treaty rules applicable in NIAC are silent on the consent of third States and on their obligation to allow and facilitate passage of relief.Footnote ¹³¹ However, as the ICRC has written:

Given the obligations of all States to ensure respect for IHL by parties to armed conflict by abstaining from encouraging violations and by taking proactive steps to end them,Footnote ¹³³ third States should arguably also refrain from undermining and hindering a party's respect for IHL when that party has consented to humanitarian activities and must allow and facilitate the passage of relief.

In addition, a third State must not withhold consent or impede the passage of humanitarian relief if this amounts to a violation of its own obligations under international law. Of particular relevance to humanitarian relief operations is the human rights obligation to respect the enjoyment of social, economic and cultural rights in other countries and the obligation to refrain from acts that would prevent their enjoyment.Footnote ¹³⁴ Moreover, a third State's withholding of consent in certain circumstances could amount to aiding or assisting another State in the commission of an internationally wrongful act.Footnote ¹³⁵

Thus, where counterterrorism measures of a State party to a NIAC prohibit or criminalize impartial humanitarian activities foreseen under IHL, this can prevent the exercise of the right under IHL of impartial humanitarian organizations to offer humanitarian services and, once accepted, to carry them out. It can also amount to a violation of that State's own obligation not to arbitrarily withhold consent to offers of impartial humanitarian relief for civilians in need, and of its obligation to allow and facilitate rapid and unimpeded passage of humanitarian relief to meet civilians’ essential needs.

Where counterterrorism measures of a third State not party to a NIAC prohibit or criminalize impartial humanitarian activities foreseen under IHL, this can prevent the exercise of the right to offer humanitarian services and to carry them out once accepted. It can also render a State's consent to such an offer void.Footnote ¹³⁶ This would be incompatible with IHL and with the obligation to ensure respect for IHL, including to refrain from undermining and hindering a party's respect for it.

Medical care

It is equally a fundamental rule of IHL applicable in any type of armed conflict that the wounded and sick shall be respected, protected, treated humanely and cared for.Footnote ¹³⁷ This applies whether the wounded and sick person is a civilian or a member of armed forces or of a non-State armed group, and regardless of any terrorist designation.

AP II and the corresponding rule of customary IHLFootnote ¹³⁸ require that the wounded and sick receive, to the fullest extent practicable and with the least possible delay, the medical care required by their condition. Only medical reasons can justify prioritizing care. This is an obligation of due diligence. If a party is not able or willing to care for the wounded and sick, then impartial humanitarian organizations may substitute with medical assistance. To recall, medical assistance carried out by impartial humanitarian organizations is explicitly foreseen in the safeguards found in paragraphs 24 and 16 of resolutions 2462 and 2482, respectively, which refer to “exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors…”.

Providing medical care to a member of a non-State armed group does not constitute an act harmful to the enemy.Footnote ¹³⁹ As is the case with an impartial humanitarian body's offer of humanitarian services described above, care for the wounded and sick does not affect the legal status of the parties to a NIAC.Footnote ¹⁴⁰ The implication is that the obligation to provide medical care applies independently of any terrorist designation of an armed group or a State's right to prosecute members of armed groups for their crimes under applicable domestic law.

To further reinforce the rule that the wounded and sick must receive the medical care required by their condition, it is prohibited to compel medical personnel to carry out tasks that are not compatible with their humanitarian mission or to require them to give priority to any person except on medical grounds.Footnote ¹⁴¹ It is equally prohibited to punishFootnote ¹⁴² any person for carrying out medical activities compatible with medical ethics, regardless of the person benefitting from them.Footnote ¹⁴³ This rule preserves the principle that medical activities are neutral, and providing medical care to any given person does not constitute taking sides. It also upholds medical ethics, which require that medical activities benefit any wounded or sick person regardless of the party to which they belong. It is also prohibited to compel a person engaged in medical activities to perform acts contrary to medical ethics.Footnote ¹⁴⁴ This would include, for instance, compelling a person to refrain from caring for a wounded or sick patient.

These prohibitions of punishing any person for medical activities compatible with medical ethics and of compelling acts contrary to medical ethics apply broadly to protect doctors and other professionals engaged in medical activities (such as nurses, midwives and pharmacists) whether or not they have been exclusively assigned by a party to the conflict.Footnote ¹⁴⁵ Importantly, they also protect persons carrying out medical activities on behalf of an impartial humanitarian organization. These prohibitions also cover a range of medical activities, including vaccinations, diagnoses and providing medical advice.Footnote ¹⁴⁶

As discussed above, broadly worded counterterrorism measures can capture medical care for wounded and sick members of designated groups and thereby deter or punish the provision of medical care. For a State party to a conflict, this would go against its own IHL obligation to ensure that the wounded and sick receive medical care and against the prohibition of punishing any person for medical activities compatible with medical ethics. For a third State, this would be incompatible with IHL and with that State's obligation to ensure respect for IHL and to refrain from undermining and hindering a party's respect for it.

Safeguards under counterterrorism sanctions

In the US, the Office of Foreign Assets Control (OFAC) of the Department of the Treasury may grant licences to authorize transactions, such as those required in the course of humanitarian activities, which would otherwise be prohibited under counterterrorism sanctions. Two types of licence are available. A general licence authorizes a specific type of transaction for a class of persons or entities and does not entail applying for it. For instance, a general licence can authorize NGOs to carry out transactions and activities involving a designated group that are ordinarily incident and necessary to activities to support humanitarian projects to meet basic needs, including the provision of food and health services.Footnote ¹⁵¹ In contrast, specific licences are tailored to a particular person or entity and transaction, and issued only in response to an application. Recognizing that humanitarian activities might unwittingly fall foul of sanctions, OFAC has also clarified that in

EU counterterrorism sanctions do not foresee any comparable exemptions or derogations to authorize humanitarian organizations to carry out activities that would otherwise be prohibited under these sanctions. However, with respect to EU sanctions more generally, the EU Council has stated 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”.Footnote ¹⁵³ In its 2020 report on steps taken to promote compliance with IHL, it added,

Some humanitarian organizations have noted that having to obtain licences or derogations under States’ sanctions measures (and often from several different States at the same time) is costly, time-consuming, causes delays in the movement of humanitarian supplies, and undermines their neutrality and independence in carrying out humanitarian activities.Footnote ¹⁵⁵ For instance, the ICRC has explained that these

In contrast, some financial institutions rely on derogations and licences to authorize transactions with humanitarian organizations that operate where designated entities are present. Others, however, have considered them a red flag indicating a high risk of illegal activity.Footnote ¹⁵⁷

To facilitate transactions needed for humanitarian operations, governments may at times offer reassurance to financial institutions through dialogue and the issuance of letters on behalf of humanitarian organizations to attest the legitimacy of funds and the organizations’ activities. “Statements of fact” will describe a government's decision to fund a humanitarian organization. “Comfort letters” have been described as a “blanket endorsement of the [humanitarian] partner and/or programme”.Footnote ¹⁵⁸ In France, for instance, the Director General of the Treasury has issued comfort letters in support of NGOs with the aim of reassuring banks. However, these do not amount to any legal guarantee and might not necessarily be available to all those humanitarian organizations who would need one.

Exceptions under criminal law

Some States have introduced exceptions (at times also referred to as exemptions) into their criminal counterterrorism legislation to exclude humanitarian and medical activities from their scope of application.

In the EU, Directive 2017/541, which requires the criminalization of support to criminal activities of a terrorist group, contains a clause that excludes humanitarian activities from its scope: “[t]he provision of humanitarian activities by impartial humanitarian organisations recognised by international law, including international humanitarian law, do not fall within the scope of this Directive…”.Footnote ¹⁵⁹ According to a 2020 report assessing compliance with the Directive, Austria, Belgium, Italy and Lithuania have legislation containing limitations to the application of counterterrorism legislation to humanitarian activities. In fifteen other Member States, generic legislation such as the criminal code can be interpreted in this manner, or authorities have said that they apply this principle in practice.Footnote ¹⁶⁰

In Chad, counterterrorism legislation adopted in 2020 criminalizes the provision by any means, directly or indirectly, of funds with the intention of seeing them used or with the knowledge that they will be used, in whole or in part, to support a terrorist group, including in the absence of a link with one or more specific acts of terrorism.Footnote ¹⁶¹ But, it also states that activities of an exclusively humanitarian and impartial character carried out by neutral and impartial organizations are excluded from the law's scope of application. It also adds that no provision of the law can be interpreted as derogating from IHL or international human rights law.

In the Philippines, the 2019 Act to Prevent, Prohibit and Penalize Terrorism criminalizes material support to any terrorist organization or individual who commits an act of terrorism, with the knowledge that the organization or individual is committing or planning to commit such an act.Footnote ¹⁶² Similarly to the definition under US law, material support includes, inter alia, any property, tangible or intangible, or service, including currency or monetary instruments, training, as well as expert advice or assistance. However, the Act excludes from the scope of this provision humanitarian activities by the ICRC, the Philippine Red Cross and other State-recognized impartial humanitarian partners or organizations in conformity with IHL.Footnote ¹⁶³

In Ethiopia, the 2020 Proclamation to Provide for the Prevention and Suppression of Terrorism Crimes makes it a criminal offence to carry out certain acts (such as handing over information or providing technical or professional support) with the intent to support a terrorist Organization; however, it also states that humanitarian aid by organizations engaged in humanitarian activities “is not punishable for the support made only to undertake function and duty”.Footnote ¹⁶⁴ Under Swiss legislation adopted in 2020, it is a criminal offence to support the activities of a criminal or terrorist organization but this does not apply to humanitarian services provided by an impartial humanitarian organization such as the ICRC in accordance with common Article 3.Footnote ¹⁶⁵

Under the New Zealand Terrorism Suppression Act 2002, it is an offence to make available, or cause to be made available, directly or indirectly, without lawful justification or reasonable excuse, any property, or any financial or related services, either to, or for the benefit of, an entity, knowing that the entity is a designated terrorist entity.Footnote ¹⁶⁶ However, a reasonable excuse exists, for instance, “where the property (for example, items of food, clothing, or medicine) is made available in an act that does no more than satisfy essential human needs of (or of a dependant of) an individual designated under [the] Act”.Footnote ¹⁶⁷ While the above-described exceptions refer to impartial humanitarian activities, the exception in New Zealand's legislation explicitly mentions medicine independently of humanitarian activity. This is important because medical activities are most often carried out by medical personnel who do not belong to an impartial humanitarian organization.

To recall, under US legislation, the crime of material support or resources does not include the provision of medicine or religious materials.Footnote ¹⁶⁸ In addition, the Secretary of State, with the agreement of the Attorney General, may explicitly approve the provision of material support to a FTO, consisting of “personnel”, “training”, or “expert advice or assistance”. Approval is not possible for other forms of material support.

With respect to travel-related counterterrorism regulation, the UK Counter-Terrorism and Border Security Act 2019 has incorporated an exception to the offence of entering or remaining in a designated area when it is for the purpose of “providing aid of a humanitarian nature”.Footnote ¹⁶⁹ Similarly, under the Australian Criminal Code, entering or remaining in an area declared by the foreign minister as one where a listed entity is engaging in hostile activity is not an offence if a person enters or remains in the area solely for the provision of aid of a humanitarian nature.Footnote ¹⁷⁰

With respect to both counterterrorism sanctions and criminal legislation, excluding humanitarian activities from their scope of application is an effective way of ensuring that impartial humanitarian activities, including medical activities, are not prohibited or punishable when these intersect with designated armed groups. They offer an explicit way for a State to ensure that its counterterrorism measures comply with its IHL obligations relating to humanitarian activities and medical care and to safeguard these activities. Such exceptions apply without requiring that a humanitarian organization seek prior authorization to carry out any activities that would otherwise be prohibited or criminalized, and they therefore offer much needed clarity at the outset of and throughout the full range of a humanitarian organization's activities. They can pre-empt the cascade of adverse consequences described above by precluding any legal risk under criminal legislation or sanctions, by eliminating the need for problematic donor clauses, by alleviating the inclination for banks and other private sector services to de-risk, and by minimizing administrative burdens, overcorrection and the overall chilling effect borne by humanitarian organizations.

In comparison, case-by-case licences and other reassurances meant to authorize or facilitate humanitarian activities that would otherwise be prohibited or criminalized are less effective at safeguarding humanitarian and medical activities in line with IHL. Their issuance can be unpredictable and is not guaranteed, they do not necessarily benefit all impartial humanitarian organizations or activities in any given context, they can undermine actual and perceived independence, neutrality and impartiality, and they can subject humanitarian activities to the discretion of a third State even when humanitarian operations have been consented to by the territorial State in accordance with IHL.

Consistent with the view that exceptions are a solid approach to ensuring that counterterrorism measures comply with IHL and safeguard humanitarian and medical activities, the UN Secretary-General recommended in his 2021 report on the protection of civilians in armed conflict that States ensure that all impartial and humanitarian and medical activities be excluded from the scope of application of counter-terrorism measures.Footnote ¹⁷¹ The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has also recommended that “States … unambiguously exempt humanitarian actions from their counter-terrorism measures at every possible opportunity, nationally, regionally and internationally…”.Footnote ¹⁷²

Also with respect to counterterrorism measures generally, whether in the form of sanctions or criminal measures, the UN General Assembly in its 2021 UN Global Counterterrorism Strategy Review urged States to

The Human Rights Council included this wording in its 2018 resolution on terrorism and human rights.Footnote ¹⁷⁴

This was also what the 2015 High-Level Review of United Nations Sanctions recommended as it considered the adverse impact of UN sanctions on humanitarian action: “If concerns exist that sanctions could impact humanitarian action, the Council should consider standing exemptions for UN humanitarian actors and implementing partners in that situation.”Footnote ¹⁷⁵ To date, the UNSC sanctions regime for Somalia, under which Al Shabaab is a listed entity, is the only UN sanctions regime that excludes financial transactions needed for humanitarian activities from its scope of application.Footnote ¹⁷⁶ The UNSC has decided that the prohibition of making funds, financial assets or economic resources available “shall not apply to the payment of funds, other financial assets or economic resources necessary to ensure the timely delivery of urgently needed humanitarian assistance in Somalia” by a series of identified humanitarian organizations.Footnote ¹⁷⁷ In light of the presence and influence of Al Shabaab where humanitarian activities take place in Somalia and the ubiquity of financial transactions connected with humanitarian operations of such magnitude, this exclusion is considered to be best suited to prevent the adverse consequences of counterterrorism measures described earlier.