Introduction
Over recent years, the potential for counterterrorism (CT) measures to negatively impact the ability of impartial humanitarian organizationsFootnote 1 to carry out their work has received much attention.Footnote 2 Against this backdrop, it has also been suggested that United Nations (UN) sanctions, including those that are not strictly related to CT, may similarly have an impact on such humanitarian action in situations of armed conflict.Footnote 3 For example, the United Nations University has sought to specifically study the relationship between non-CT-related UN sanctions and humanitarian action, a project that is ongoing at the time of writing.Footnote 4
“Non-CT-related” UN sanctions which are related to armed conflict make up a majority of the sanctions regimes adopted by the UN Security Council (UNSC) that are currently in force. Of the fourteen UN sanctions regimes in force at the time of writing, ten can be characterized as “conflict-related” sanctions – i.e., those that are designed to apply to situations of armed conflict. These are those sanctions applicable to Somalia, the Democratic Republic of the Congo (DRC), the Central African Republic (CAR), Yemen, Mali, Sudan, South Sudan, Libya, Iraq, and the 1988 sanctions regime relating to the Taliban in Afghanistan,Footnote 5 all of which are the focus of this paper.Footnote 6 The paper therefore excludes an analysis of the 1267 sanctions regime on Al-Qaeda and the Islamic State of Iraq and the Levant (ISIL), which is the only “pure CT” sanctions regime within the UN system.Footnote 7
Focusing on the ten conflict-related UN sanctions regimes listed above, this paper is an attempt to add to the discourse surrounding these UN regimes, which have thus far appeared to receive less attention from a legal perspective than their CT-related counterparts. It seeks to draw lessons from the legal discourse surrounding CT obligations binding on member States pursuant to decisions by the UNSC acting under Chapter VII of the UN Charter,Footnote 8 and their potential impacts on impartial humanitarian action. More concretely, it examines the possible threats posed to impartial humanitarian action by UN sanctions, and any potential mitigating measures based on past discussions concerning CT and international humanitarian law (IHL).
Comparisons between non-CT-related sanctions and UN sanctions with CT measures mandated by the UNSC are drawn,Footnote 9 because the threats to impartial humanitarian action they both pose are similar in kind. As will be elaborated in the following section, the dangerous elements of CT resolutions such as Resolution 2462 find parallels in non-CT-related UN sanctions. Both have the potential to either directly prohibit impartial humanitarian action or at least have a prohibitive impact.
With regard to CT, however, there have been developments towards striking a balance between CT objectives, on the one hand, and IHL and humanitarian action, on the other. For instance, Resolutions 2462 and 2482 have explicitly clarified that all CT measures must be implemented in accordance with IHL using binding “decides” and “demands” language in their operative paragraphs.Footnote 10 To date, however, there have been no such references in non-CT-related UN sanctions.
What may seem like banal references to IHL could in fact be rather crucial from a legal perspective. At a minimum, these explicit references using mandatory language in the operative paragraphs of CT resolutions clarify the relationship between the obligations contained therein and IHL. They dictate that the former cannot come at the expense of the latter; rather, all CT obligations must be implemented in accordance with IHL. As will be explained, this includes specific IHL rules that protect and privilege impartial humanitarian action.Footnote 11 In the absence of such references to IHL, as is the case for non-CT-related UN sanctions, not only is the relationship between IHL and sanctions obligations unclear, but it could also lead to assumptions that UNSC obligations take precedence over IHL by virtue of Article 103 of the UN Charter.
Article 103 stipulates that “[i]n 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 this present Charter shall prevail”.Footnote 12 At first glance, this “supremacy clause”, meant to prioritize UN Charter obligations over conflicting obligations, could be considered to apply to IHL. Indeed, the supremacy of UN Charter obligations over IHL has already been argued in the past within the context of CT.Footnote 13 Against this backdrop, this paper seeks to explore the relationship between IHL and UN sanctions obligations. It focuses on Article 103 and argues that the supremacy clause does not impact obligations under IHL relating to impartial humanitarian action even in the absence of references to IHL akin to those found in UNSC Resolution 2462.
This discussion is useful in determining the extent to which States may take measures to safeguard impartial humanitarian activities in the absence of UNSC resolutions that call for such measures. For example, there may be hesitancy to adopt measures to mitigate the impact of sanctions on humanitarian action through domestic or regional “carve-outs” for impartial humanitarian organizationsFootnote 14 without specific instructions to do so in UNSC resolutions. The reasoning is that such carve-outs could result in actual or perceived non-compliance with sanctions because they necessarily result in the non-application of sanctions measures vis-à-vis humanitarians and their work. The European Union (EU), for instance, takes the position that it is only possible to include mitigating measures such as “humanitarian exemptions” or carve-outsFootnote 15 when implementing UN sanctions if such exemptions are authorized or demanded in the UNSC resolutions themselves.Footnote 16
Accordingly, the fundamental question this paper seeks to answer is whether States can adopt mitigating measures such as carve-outs from UN sanctions, in the absence of language contained in UNSC resolutions obliging or authorizing them to do so. To address this question, the article proceeds by first providing a brief overview of recent studies on the impact of UN sanctions on humanitarian action, with a particular focus on asset freeze measures and the dangers they could pose to impartial humanitarian action.Footnote 17 This is followed by a discussion of select IHL rules which could safeguard impartial humanitarian organizations from the effects of UN sanctions. Finally, the article concludes by examining the relationship between IHL and sanctions obligations in light of the supremacy clause under Article 103 of the UN Charter.
At the outset, it must be noted that the purpose of this paper is not to provide a comprehensive presentation of how these sanctions have actually prevented or impeded humanitarian action. Rather, primarily from a legal perspective, the paper explains how the current formulation of UN sanctions obligations has the potential to inhibit or prevent the work of humanitarians. Gathering of concrete evidence of negative impact, which is undoubtedly an important task for this discussion, is left to others who are better placed and equipped for such purposes.Footnote 18 That said, this paper was prompted by a study which indicates that there are already a handful of examples indicating unintended repercussions on humanitarian action.Footnote 19 Accordingly, it borrows examples from this and other studies to articulate the actual and potential practical implications of the legal obligations posited by the UNSC. At the same time, the present author fully accepts that it is not always possible to state with certainty that a negative impact vis-à-vis impartial humanitarian action necessarily stems from UN sanctions. The studies that gather evidence of impact on humanitarian action make this abundantly clear.Footnote 20
Notwithstanding these caveats, the forthcoming legal discussions, particularly with regard to the relationship between IHL and sanctions obligations, are worth having while further evidence is being gathered. Ideally, these discussions will become moot in the absence of evidence indicating impact on humanitarians. At the same time, however, this paper strives to anticipate and provide a way out of potential legal quagmires in the event that additional concrete evidence of the negative impact of sanctions on humanitarian action is uncovered.
Potential tensions between asset freezes under UN sanctions and impartial humanitarian action
Of the three core sanctions measures of asset freezes, travel bans and embargoes,Footnote 21 asset freezes have been described as posing the biggest threat to impartial humanitarian action.Footnote 22 This is not to say that the other categories of UN sanctions measures do not have the potential to negatively impact humanitarian action. Embargoes, most commonly in the form of arms embargoes, can impede the ability for humanitarian organizations to import equipment in instances where the equipment could qualify as a “dual-use” object, meaning an object that could be used for both humanitarian/civilian and military purposes.Footnote 23 Travel bans, while seemingly innocuous, also have the potential to limit the ability of humanitarian organizations to interact with listed individuals. On example of this is the difficulty experienced by some organizations in conducting training on humanitarian or legal concerns, if such interactions would require the listed individuals to travel across international borders.Footnote 24 That said, asset freeze measures are the focus of this paper because they resemble measures demanded by the UNSC in relation to countering the financing of terrorism under UNSC Resolution 2462.
The similarities between asset freezes and obligations under Resolution 2462 stem primarily from the resolutions establishing the sanctions themselves. The UN sanctions applicable to Mali, for instance, stipulate the following obligation under Chapter VII of the UN Charter:
[The UNSC] decides further that all Member States shall ensure that any funds, financial assets or economic resources are prevented from being made available by their nationals or by any individuals or entities within their territories, directly or indirectly to or for the benefit of the individuals or entities designated by the [Sanctions] Committee.Footnote 25
Identical phrasing can be found in the asset freeze language in the resolution applicable to South SudanFootnote 26 and the 1988 regime applicable to the Taliban in Afghanistan.Footnote 27 The DRC,Footnote 28 Somalia,Footnote 29 Libya,Footnote 30 Sudan,Footnote 31 CARFootnote 32 and YemenFootnote 33 regimes also contain similar language but with the omission of the words “directly or indirectly”, thereby arguably narrowing the scope of the obligation to freeze assets.Footnote 34 This language is concerning because the precise scope of these obligations is unclear and could lead to expansive interpretations by member States. For instance, what does it mean to “make available” any “funds, financial assets or economic resources” for the “benefit” of individuals? The danger is that member States may interpret these asset freeze obligations in a way that could hamper impartial humanitarian action.Footnote 35
Compare this asset freeze language with operational paragraph 5 of UNSC Resolution 2462 relating to CT:
[The UNSC] [d]ecides that all States shall, in a manner consistent with their obligations under international law, including international humanitarian law, international human rights law and international refugee law … establish serious criminal offenses … [for the] the wilful provision or collection of funds, financial assets or economic resources or financial or other related services, directly or indirectly, with the intention that the funds should be used, or in the knowledge that they are to be used for the benefit of terrorist organizations or individual terrorists for any purpose, including but not limited to recruitment, training, or travel, even in the absence of a link to a specific terrorist act.Footnote 36
As was reported in the lead-up to the adoption of Resolution 2462, the breadth of this language raised the concerns of the humanitarian community for the potential impact that it could have on their work.Footnote 37 Others have pointed to the potential for obligations under this paragraph to collide with those under IHL. For example, as Lewis and Modirzadeh have argued, terms such as “for the benefit of terrorist organizations” in Resolution 2462 could include the provision of funds financing medical care for wounded or sick fighters in armed conflict who are considered to be “terrorists”.Footnote 38
It is submitted that asset freezes may likewise give rise to interpretations that result in impediments to humanitarian action. This is in part because there is also currently little to no uniform guidance from the UN itself as to how these asset freezes are to be interpreted and implemented.Footnote 39 Moreover, unlike Resolution 2462, asset freeze obligations are broader in certain respects because the UNSC resolutions establishing them do not include subjective requirements such as “wilful” or “with the intention to”.Footnote 40 This is coupled with the fact that failure to comply with these measures results in grave consequences depending on the jurisdiction, including civil and criminal liability.Footnote 41 There are indeed States that prescribe penal sanctions for violations of asset freezes, even due to negligence.Footnote 42
This poses a risk for humanitarian organizations, and for their donors when providing and transferring funds and assets to the former. Humanitarian organizations operating in armed conflict naturally encounter listed individuals and entities in the course of their work, especially when the parties to the armed conflict themselves are listed entities.Footnote 43 Within these contexts, humanitarian organizations may be forced to provide incidental payments, such as tolls, taxes and permit fees, to designated individuals or entities when operating.Footnote 44 The diversion of relief supplies, an occurrence that cannot be avoided with absolute certainty, may also result in such supplies falling into the hands of listed individuals and entities.Footnote 45
The most obvious risk is that humanitarian organizations and their staff could be implicated and punished for sanctions violations. Moreover, these measures could have indirect effects to the detriment of humanitarian action. There is at least anecdotal evidence of self-regulation and “over-compliance” by humanitarians, in an effort to avoid liability arising out of sanctions violations.Footnote 46 This so-called “chilling effect” has reportedly caused responses in certain contexts to skew heavily towards government-controlled areas.Footnote 47
Another indirect consequence stems from risks for donors, which in turn impacts humanitarian responses. The High-Level Review of United Nations Sanctions documented difficulties for some humanitarian organizations in obtaining funding to operate in certain areas, particularly those under the control of listed non-State armed groups.Footnote 48 Such challenges in obtaining funds may be due to de-risking by States and private institutions such as banks, which are hesitant to transfer funds for programmes in areas under the control of listed entities.Footnote 49
Existing mechanisms for preventing and mitigating harm to impartial humanitarian action
This section seeks to introduce the existing mechanisms for mitigating the impact of sanctions on impartial humanitarian action and to examine how such mechanisms may fit within IHL. Before doing so, however, a brief discussion of semantics is useful.
Broadly speaking, “humanitarian exemptions” are often cited when discussing mechanisms for protecting impartial humanitarian action from both CT measures and sanctions. That said, the current paper prefers the term “carve-outs”. As some authors have pointed out, the term “humanitarian exemption” may lead to confusion, because “exemption” denotes several different mechanisms.Footnote 50 Within the UN system, a “humanitarian exemption” could denote the case-by-case non-application of sanctions measures against a listed individual, including on humanitarian grounds.Footnote 51 Other “exemptions” are directed at the humanitarian organizations and activities themselves.Footnote 52
Even within this latter type of exemptions, there are two subtypes. The fist requires that relevant sanctions committees selectively derogate sanctions measures on a case-by-case basis,Footnote 53 while the second precludes the application of sanctions measures vis-à-vis select humanitarian actors and activities without the need for any case-by-case assessments. For the purposes of this paper, these two mechanisms will be referred to as “ad hoc derogations”Footnote 54 and “carve-outs”Footnote 55 respectively.
From the perspective of mitigating the impact on impartial humanitarian action and upholding the framework under IHL, there is therefore a preference for carve-outs.Footnote 56 They would clarify at the outset, for both the entities implementing sanctions and humanitarian organizations, that the sanctions measure would not apply to impartial humanitarian action.Footnote 57 Currently, there is only one such carve-out in force, which exists within the Somalia sanctions regime. Resolution 2551 most recently renewed this carve-out, which precludes the application of sanctions measures vis-à-vis
the United Nations, its specialised agencies or programmes, humanitarian organisations having observer status with the United Nations General Assembly that provide humanitarian assistance, and their implementing partners including bilaterally or multilaterally funded non-governmental organisations participating in the United Nations Humanitarian Response Plan for Somalia.Footnote 58
This is reportedly immensely helpful, if not crucial, for the continuation of humanitarian action in Somalia. Among other things, it provides a “basis for donors, contractors and finance and banking systems to enable the financing of humanitarian assistance in areas in which Al-Shabaab operates”.Footnote 59 At the same time, it has garnered criticism on the grounds that it is limited to select humanitarian actors.Footnote 60 Reproducing such a carve-out in other sanctions regimes, or better yet, adopting a similar, more inclusive carve-out across all sanctions regimes, has been put forward as one of the most effective ways to prevent and mitigate the impact on humanitarian action.Footnote 61 The reality, however, is that such a comprehensive carve-out at the international level does not currently exist.
In contrast to carve-outs, the reaction towards ad hoc derogations has been more mixed. These derogations have been criticized due in part to the fact that the process of obtaining approval from the sanctions committees can be time- and energy-intensive on the part of humanitarian actors.Footnote 62 Moreover, ad hoc derogations may have a negative effect on the actual or perceived impartiality, neutrality and independence of the humanitarian actors applying for them.Footnote 63 This is because, in effect, these procedures allow sanctions committees to influence “when, how and with whom” humanitarians can operate in armed conflict.Footnote 64 Such derogations could also provide an avenue for sanctions committees to second-guess humanitarian organizations’ needs assessments on the ground, or how each organization can meet those needs. For instance, humanitarian activities are exempt from the measures included under the Yemen sanctions regime if “the Committee determines that such an exemption is necessary to facilitate the work of the United Nations or other humanitarian organisations in Yemen”.Footnote 65
From a legal standpoint, such a layer of “approval” or determination of “necessity” by members of sanctions committees appears to disturb the normative framework for impartial humanitarian action. Under IHL it is only the parties to the conflict and impartial humanitarian organizations that are given the prerogative to appraise the outstanding humanitarian needs and the “necessity” of the humanitarian response and its implementation. Without delving into the framework in its entirety, the key facets are as follows.
As a starting point, the parties to the armed conflict have the primary obligation to meet the needs of the affected population, and will naturally make needs assessments.Footnote 66 Against this backdrop, IHL provides a legal basis for impartial humanitarian bodies to offer their services to the parties to the conflict and to supplement the humanitarian responses of those parties to the conflict.Footnote 67 Within this framework, impartial humanitarian organizations may assess any outstanding needs that must be met and put forward proposals to do so.Footnote 68 Where the needs assessments by impartial humanitarian organizations may come under scrutiny, albeit in a limited way, lies in the requirement that such activities be undertaken with the consent of the parties to the conflict concerned.Footnote 69 At least in theory, a party to the conflict could deny consent on the grounds that there were no outstanding humanitarian needs,Footnote 70 provided that the assessment was made in “in good faith”.Footnote 71 That said, a miscalculation, even if made in good faith, regarding the needs of the affected population could lead to both moral and legal responsibility for denying consent.Footnote 72
Once consent is granted, parties to the conflict are granted a limited degree of control over how humanitarian programmes are implemented through their “right of control”.Footnote 73 This does not, however, allow the relevant party to the conflict to determine what is necessary to facilitate the implementation of such programmes. In reality, the right of control is rather limited. While not an exhaustive list, the International Committee of the Red Cross (ICRC) mentions the following as falling under the right of control: verifying the nature of the humanitarian action, prescribing technical arrangements, and restricting humanitarian activities due to imperative military necessity, provided limitations are temporally and geographically limited and do not unduly delay or render impossible the implementation of humanitarian activities.Footnote 74
This framework under IHL limits the degree to which the needs assessments, planning and implementation of activities by humanitarian organizations can be second-guessed. Based on the reasons outlined above, the framework of IHL envisages impartial humanitarian organizations as the primary appraisers of outstanding humanitarian needs, with scope (albeit limited) for parties to the conflict to challenge such assessments. Contrary to this system, however, ad hoc derogations appear to allow sanctions committees to add an additional layer of assessment and control other than what is envisaged under IHL.Footnote 75
Questions as to the legality of domestic carve-outs and other mitigating measures in light of Chapter VII of the UN Charter
In lieu of carve-outs at the international level mandated by the UNSC, UN member States could theoretically take the initiative and adopt carve-outs in their domestic legislation. In the CT sphere, there have been regional and domestic efforts to prevent CT legislation and measures from applying to humanitarian action. Key examples include the EU CT directive as well as domestic criminal legislation such as that of the United Kingdom and Australia.Footnote 76
The question that the following section seeks to address, however, is whether such mitigating measures would be permissible as a matter of law vis-à-vis UN sanctions obligations adopted under Chapter VII.Footnote 77 Would, for instance, a State be permitted to preclude, in toto, the application of domestic civil and criminal penalties against a humanitarian organization through a domestic carve-out?
The issue is that in the absence of a carve-out at the level of the UNSC, a member State adopting mitigating measures necessarily appears to be implementing sanctions in a way that is lax when compared to what is envisaged in the relevant UNSC resolution. This reasoning appears to prevent the EU from adopting carve-outs or exemptions when implementing UNSC resolutions in its own restrictive measures:
Chapter VII UNSC Resolutions are mandatory under international law. In the case of EU implementation of restrictive measures decided by the Security Council through a resolution, it will therefore only be possible to include exemptions if they are in line with the Resolution.Footnote 78
As will be discussed below, however, there is an argument to be made that such mitigating measures would be in furtherance of fulfilling obligations under IHL. The question then turns to the crux of this issue – that is, whether or not States could adopt such measures based on IHL when doing so could be interpreted as failing to comply with UN sanctions obligations.
Mitigating measures and obligations under IHL
Two IHL rules are of particular relevance to mitigating measures.Footnote 79 The first is the obligation to “allow and facilitate” impartial humanitarian action. According to the ICRC, this obligation binds, at a minimum, parties to the armed conflict as a matter of customary international law applicable to both international and non-international armed conflicts.Footnote 80 Not only does this obligation require parties not to “impede” impartial humanitarian action, but it also creates positive obligations such as the lifting of measures and formalities that could unduly interfere with or hinder humanitarian activities.Footnote 81
At least for States party to Additional Protocol I, this obligation applies not only to the immediate parties to the conflict but also to all States that could potentially have an impact on the ability for humanitarian organizations to carry out their missions.Footnote 82 A similar stipulation was dropped from Additional Protocol II at the last minute of drafting; that being said, the ICRC also cites practice to indicate that the scope of the obligation to allow and facilitate may extend beyond the immediate parties to a non-international armed conflict as a matter of customary international law.Footnote 83
A second relevant rule under IHL is the obligation of “non-prohibition” of impartial humanitarian activities. Crucially, this rule is a potential legal basis for carve-outs from sanctions measures. According to the ICRC, the prerogative of impartial humanitarian organizations to offer services as enshrined in Article 3 common to the four Geneva Conventions, applicable to all types of armed conflicts, includes protection from criminalization and prosecution. In other words, IHL prohibits the criminalization, or penalization through other means, of impartial humanitarian action.Footnote 84
Against the backdrop of these rules, the ICRC argued with respect to CT in its 2019 Challenges Report that measures which impede impartial humanitarian action are “incompatible with the letter and spirit of IHL”, citing, among other things, the obligation to allow and facilitate humanitarian action and the protection from prohibition and criminalization.Footnote 85 Carve-outs have thus been described as a means to allow and facilitate humanitarian action and protect it from prohibition.Footnote 86 Hence, it is at least plausible to argue that IHL calls for, or at least provides the legal basis for, mitigating measures vis-à-vis UN sanctions. Such measures would perhaps be in the form of carve-outs or other means to clarify the scope of sanctions and reassure humanitarians, their donors and any other related stakeholders.Footnote 87
The potential effect of Article 103 of the UN Charter on IHL
Taking for granted that UN sanctions have the potential to impact impartial humanitarian action, and that mitigating measures could be interpreted as measures to respect IHL, the next question is whether States would be permitted to implement such measures without falling foul of the UN Charter. On this particular point, the relationship between obligations under IHL and obligations stemming from the UN Charter is key.
While Resolution 2462 has not escaped criticism for falling short with regard to the protection of humanitarian action,Footnote 88 it at least makes clear that member States must implement the resolution in compliance with their obligations under IHL.Footnote 89 As mentioned, no such stipulations exist with respect to UN sanctions more generally. While resolutions may call on parties to the armed conflict to adhere to IHL, to date there are no stipulations in relevant UNSC resolutions requiring that sanctions be implemented in accordance with this body of law. This absence of references to IHL could lead to the conclusion that sanctions obligations prevail over obligations under IHL, such as the obligation to allow and facilitate impartial humanitarian action and to refrain from prohibiting such action.
As was explained at the beginning of this article, such a conception of the relationship between IHL obligations and sanctions could be based on the so-called “supremacy clause” under Article 103 of the UN Charter. Article 103 dictates that all obligations under the UN Charter prevail over obligations under “any other international agreement”.Footnote 90 To be clear, sanctions obligations adopted under Chapter VII would undoubtedly qualify as a UN obligation coming under the scope of Article 103.Footnote 91
Within the CT context, some have used Article 103 to argue that IHL obligations are subject to the supremacy of conflicting UN Charter obligations,Footnote 92 with the exception of those rules under IHL that have attained the status of jus cogens.Footnote 93 If this were the case, a State facing seemingly conflicting obligations under UN sanctions regimes and IHL would be required to implement the former at the expense of the latter. Article 103 would, at least temporarily, suspend IHL obligations relating to the protection of impartial humanitarian action, such as the obligation to allow and facilitate, or to refrain from punishing, humanitarian action. This could in turn lead to the conclusion that mitigating measures violate UN sanctions and the Charter.Footnote 94
Given the potential for this line of argument to harm impartial humanitarian action, it would therefore be a welcome development if UN sanctions regimes were to clarify, similarly to the aforementioned Resolution 2462, that all sanctions measures must be implemented in accordance with IHL.Footnote 95 At the very least, this would bring clarity for impartial humanitarian organizations and States as to the relationship between sanctions and IHL. Failing to do so should not, however, lead to the conclusion that until such language is included, Article 103 necessarily leads to sanctions obligations overriding those under IHL.
Granted, some already take this view, based on the notion that IHL would constitute the lex specialis in situations of armed conflict and that Article 103 would not have an impact on customary IHL even if the relevant norms did not attain the status of jus cogens.Footnote 96 Both arguments are plausibleFootnote 97 but fall outside of the scope of this current contribution. As will be discussed below, there are additional avenues to arrive at a similar conclusion. Without prejudicing the forthcoming discussion, suffice it to say that this hinges on what is meant by “conflict” within the meaning of Article 103.
“Discretionary” and “non-discretionary conflicts” between UN Charter obligations and IHL
The aforementioned “supremacy clause” under Article 103 applies to “conflicts” between obligations stemming from the Charter and those under other “international agreements”.Footnote 98 Whether or not obligations under IHL, such as the obligation to allow and facilitate humanitarian action or refrain from its prohibition, would survive the supremacy of Article 103 and the Charter hinges on how we interpret “conflicts” in this context.
On the one hand, the International Law Commission (ILC) has adopted a broad definition of conflicts generally. In its report on fragmentation, it defines “conflicts” as any situation in which there are two sets of obligations and each frustrates the goals of the other, even “without there being any strict incompatibility between their provisions”.Footnote 99 Based on this definition, one could argue, for instance, that precluding the application of sanctions measures to humanitarian actors “frustrates” the goals of the sanctions regime. This is especially true if there is a risk of assets being diverted for the benefit of listed individuals or entities. It is, however, questionable whether such a broad definition would be appropriate with respect to the relationship between IHL and sanctions. To be clear, the aforementioned definition of “conflicts” was a general definition adopted by the ILC for conflicts of norms and not one that was specific to its discussion on Article 103.
Given the potential breadth of sanctions measures as outlined in the previous section,Footnote 100 it is important to distinguish between two broad categories of conflicts: “discretionary” and “non-discretionary”. Starting with the latter, a “non-discretionary” conflict exists where the implementation of one obligation necessarily results in the violation of another.Footnote 101 Such would be the case if the implementation of a sanctions obligation would result in, for instance, an impediment to impartial humanitarian action with no room to accommodate the latter. The other type of conflict is what this paper refers to as a “discretionary” conflicts. This would include cases where a UNSC obligation is flexible enough that it can be implemented in accordance with other obligations such as those under IHL.Footnote 102 In such discretionary conflicts, there is no inevitable conflict between obligations; rather, the existence of a conflict is dependent on how the obligations are interpreted.
It is submitted that currently, the potential conflict between UN sanctions and IHL is a discretionary conflict. This is based on the fact that whether the relevant obligations are incompatible depends on how sanctions measures such as asset freezes are interpreted. To date, the precise meaning of UN sanctions measures is still open to interpretation. While the aforementioned asset freeze language prohibiting the “mak[ing] available” of any “funds, financial assets or economic resources” for the “benefit of [designated] individuals”Footnote 103 certainly can be interpreted to encompass humanitarian activities, there is currently nothing to suggest that these measures must be implemented in such a way. There is nothing intrinsic to these terms to indicate that they would cover impartial humanitarian activities, nor is there an indication that the UNSC wishes this to be the case.
This distinction and conclusion is supported by the jurisprudence of the European Court of Human Rights (ECtHR). In the Al-Jedda case, the ECtHR had to determine whether obligations under UNSC Resolution 1546 prevailed over those under international human rights law. The precise question at hand was whether the UK could place individuals under internment or preventive detention, a modality of detention that is not foreseen under Article 5 of the European Convention on Human Rights (ECHR).Footnote 104 In this case, the ECtHR decided that Article 103 did not have the effect of displacing obligations under human rights law. The key factor was that there was no explicit language authorizing or requiring internment,Footnote 105 and the Court reasoned that “there must be a presumption that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights”.Footnote 106 Perhaps most importantly for the present discussion, the Court opined that “[i]n the event of any ambiguity in terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the [ECHR] and which avoids any conflict of obligations”.Footnote 107
This reasoning suggests that tensions between UN obligations and their goals, on the one hand, and clear-cut IHL rules safeguarding humanitarian action, on the other, would be insufficient to trigger the supremacy clause at the expense of the latter. As mentioned above, what is required is express language authorizing or requiring the implementation of sanctions even at the expense of impartial humanitarian action. No such language currently exists within UN sanctions regimes, nor is there interpretive guidance to suggest otherwise.
In the absence of explicit language or other indications as to the intent of the Council, it is submitted that it would be difficult to presume that the UNSC specifically intends to impose sanctions obligations that would impede humanitarian action to the detriment of IHL. On the contrary, Resolution 2286, for example, reiterates at the outset the UNSC's responsibility to “promote and ensure respect for the principles and rules of international humanitarian law”,Footnote 108 and individual members of the UNSC have made it clear that sanctions are not intended to hinder or impede humanitarian action.Footnote 109 The transition from comprehensive to “targeted” sanctions suggests an intention to avoiding negative humanitarian consequences.Footnote 110 Furthermore, it is worth recalling that one of the objectives of UN sanctions appears to be to protect and facilitate impartial humanitarian access. Not only do conflict-related sanctions regimes include language condemning the obstruction of humanitarian action, but six sanctions regimes enable entities that obstruct humanitarian access to be sanctioned themselves.Footnote 111 As outlined in the previous section, there is little guidance from the UN as to how exactly States must implement asset freezes and other measures, thereby leaving room for States to adopt interpretations and implementation measures that benefit impartial humanitarian action.Footnote 112
The focus then turns to a hypothetical but more difficult question: what to make of a non-discretionary conflict. An example of such a situation would be if the UNSC were to adopt asset freeze measures, or even interpret current measures, to cover cases where listed entities benefit through diversion of assets.Footnote 113 Or perhaps even more damaging would be if the Council were to clearly adopt interpretations akin to the “fungibility” theory which arose out of CT jurisprudence, whereby humanitarian assistance could be characterized as providing assets to listed entities insofar as it “frees up” those entities’ other resources.Footnote 114
While there is certainly room for debate, the present author is of the view that the relevant provisions of such a resolution would still fall outside of the ambit of Article 103. This is based on the fact that there are limits to the competence of the UNSC,Footnote 115 and that a violation (or violations) of IHL at the expense of humanitarian action would fall outside of the powers of the Council. Admittedly, the question of precisely what constitutes an ultra vires act by the UNSC, and how to make such a determination, is a difficult one. What is clear, however, is that the UNSC is bound by the purposes and principles of the UN.Footnote 116 Article 24(2) of the UN Charter stipulates that the UNSC “shall act in accordance with the Purposes and Principles of the United Nations” when discharging its duties.Footnote 117
These principles and purposes are found in Article 1(3) of the UN Charter, which posits international cooperation in solving international problems, including of a humanitarian character, as one of the purposes of the organization.Footnote 118 Based on this, some commentators have argued that the rule of law and respect for IHL constitute limitations on the powers of the UNSC acting under Chapter VII.Footnote 119 Accordingly, leaving aside the immense issue of how to determine the legality of UNSC acts, it is submitted that the UNSC does not have the power to impose a sanctions resolution which explicitly results in violations of IHL and undermines efforts to solve problems of a “humanitarian character”. Such sanctions obligations, enacted ultra vires by the UNSC, would not be subject to the supremacy clause under Article 103 of the Charter.Footnote 120
Admittedly, this is a highly theoretical line of argument. If such a situation were to arise in practice, determining the legality of a UN sanction would not be a straightforward task, and nor would determining the forum in which to conduct such a legal review of UNSC acts. Member States would truly be caught “between a rock and a hard place”, having to choose between IHL and UN Charter obligations. Some may choose to rely on Article 103 to justify deviations from IHL, while others may strive to preserve IHL.Footnote 121 Either way, such a clear contradiction between the object and purposes of the UN and the effects of UN sanctions may reflect negatively on the legitimacy of sanctions as a global policy tool for influencing actors involved in armed conflict.Footnote 122
Conclusion
If subsequent research confirms the indications that UN sanctions can have an adverse impact on impartial humanitarian action, it is useful to take note of their broader implications for humanitarian action. Such evidence of impact would mean that UN sanctions could undermine the ability of humanitarian organizations to act, or to be perceived to be acting, in an impartial, neutral and independent manner. It would also mean that a political body such as the UNSC could dictate the implementation programmes of humanitarian activities that are meant to be quintessentially apolitical. This is despite the fact that adherence, and perception of adherence, to these principles is often a necessary condition for humanitarians to be able to operate effectively and safely.Footnote 123
This paper has hoped to address this potential dynamic from a legal perspective, with particular attention paid to the apparent friction between IHL and sanctions obligations. As has been argued, Article 103 cannot trigger the supremacy of sanctions obligations over IHL unless such an effect is clearly intended by the UNSC. In the absence of clear evidence to the contrary, it should be assumed that the Council does not intend unduly to encroach on this crucial humanitarian space.Footnote 124 IHL must therefore always be respected when sanctions obligations do not explicitly require States to violate such obligations. On the other hand, if the UNSC clearly intends for its decisions and demands on member States to violate IHL, the effect of such a provision in a UNSC resolution may be null, at least in theory, due to the Council acting ultra vires.Footnote 125
The present author is aware of the theoretical, political and practical challenges that this may give rise to, but it is important not to lose sight of the current reality of UN sanctions. Given that the primary issue is that there is a lack of clarity as to the precise scope of sanctions obligations, one could imagine that an overwhelming majority of issues would fall under the category of a “discretionary” conflict, which must be resolved in favour of preserving IHL. Such a line of argument, should it be accepted, is of course far from being a panacea – it is merely the first step of many.
Experts who are familiar with the issue will be quick to note that it is not necessarily UN sanctions that are the root cause of impediments to humanitarian action, but a combination of multilateral and unilateral sanctions which can lead to further complications. Accordingly, this paper only addresses part of the issue, but it is hopefully one that helps to avoid inaction by States with regard to preserving the impartial humanitarian space due to fears that doing so would violate UN Charter obligations. As studies into the impact of sanctions on humanitarian action continue, it would certainly be interesting and useful to determine what proportion, if any, of the issues relating to IHL would amount to such a “non-discretionary” conflict with sanctions obligations. In such cases, the theoretically and practically difficult question of whether the UNSC has acted intra vires may come into play.
To address doubts that may stem from either of these types of norm conflicts, it would perhaps be prudent to include explicit language in UN sanctions reminding States implementing related duties that they have an obligation to respect IHL. A lack of such a stipulation, however, should not be taken to mean that IHL may be left by the wayside.
