UN Sanctions and Humanitarian Action - Review of Past Research and Proposals for Future Investigation - UNU Collections
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UN Sanctions and Humanitarian Action Review of Past Research and Proposals for Future Investigation Dr Rebecca Brubaker and Sophie Huvé
Dr Rebecca Brubaker / Sophie Huvé
Dr Rebecca Brubaker is Senior Policy Adviser at United Nations
University Centre for Policy Research and Sophie Huvé is Legal
Expert at United Nations University Centre for Policy Research.
January 2021
This report was commissioned by the Swiss Federal Department of Foreign Affairs
as part of the larger Swiss-supported project: Developing Guidance for Improved
Implementation: UN Conflict-Related Sanctions and Humanitarian Action.
All opinions expressed in the report are those of the authors alone.
The authors would like to thank Dr Tristan Ferraro, Claudia Moser, Dustin
Lewis, Dr Zuzana Hudáková, and Alice Debarre for their helpful comments on
previous drafts.
ISBN: 978-92-808-6524-0 © United Nations University, 2021.
All content (text, visualizations, graphics), except where otherwise specified or attributed, is
published under a Creative Commons Attribution- Noncommercial-Share Alike IGO license (CC
BY-NC-SA 3.0 IGO). Using, re-posting and citing this content is allowed without prior permission.
Citation: Rebecca Brubaker and Sophie Huvé, UN Sanctions and Humanitarian Action: Review of
Past Research and Proposals for Future Investigation (New York: United Nations University, 2021).Contents
02 I. Introduction
02 II. Moments of scrutiny and change in
the design and use of UN sanctions regimes
03 III. Examining the current moment
Scrutinizing the impact of counter-terrorism measures in
general and sanctions in particular on humanitarian action
Looking beyond counter-terrorism sanctions
Calls for change and options for potential solutions
08 IV. Looking ahead: a call for further scrutiny
outside the counter-terrorism sphere
Areas of complementarity and tension
Comparing counter-terrorism and conflict sanctions contexts
and implications for research findings
A note on combined counter-terrorism and armed conflict settings
11 V. Presenting an agenda for future research
Terminology
Substantive areas for further research
Methodological challenges
14 VI. Conclusion
16 ReferencesI. Introduction
Since the early 2000s, international and regional and humanitarian action and provides a
organizations as well as States have increasingly roadmap for future research endeavors. It
imposed various measures that aim to control, situates this issue as the third in three waves of
restrict or prohibit interactions with certain UN sanctions reform. It traces how it emerged
States, groups or individuals, for political, social within the counter-terrorism (CT) sphere and
and military ends. These ends have included seeks to summarize the research findings on
upholding the international security order, the impact of CT measures on humanitarian
deterring violations of human rights, frustrating action, noting differences between CT measures
the pursuit of weapons of mass destruction and in general and sanctions (including CT sanctions)
nuclear proliferation, and blocking sponsorship in particular. The paper outlines a new path for
of or engagement in terrorism. Conversely, for policy research; one focused on the remaining
the past few years, increasing assertions have thirteen UN sanctions regimes, all of which
been made inside and outside the humanitarian largely fall outside of the CT space. The paper
community that, as a result of these international concludes with clarification of key terms and an
restrictive measures, the space for principled articulation of why establishing further evidence
humanitarian action has been shrinking. on this issue is critical to both the legitimacy and
the effective use of UN sanctions.
This paper offers an overview of research
conducted on the interplay of UN sanctions
II. Moments of scrutiny and change in the design
and use of UN sanctions regimes
UN sanctions are one of the critical instruments including the Council’s call for sanctions under
employed by the Security Council in its efforts Article 41.
to counter terrorism, stem nuclear proliferation,
Members of the Security Council have
and prevent or resolve armed conflict. UN
redesigned and refined sanctions over time,
sanctions are applied under Article 41 of the
leading to more targeted, efficient and effective
UN Charter and consist in all of the measures
versions of the tool. Two significant moments of
“not involving the use of armed force” that the
scrutiny and change have fundamentally altered
UN Security Council can adopt to give effect to
the design and approach to UN sanctions. The
its decisions.1 In practice, UN sanctions most
first involved the reforms undertaken between
frequently include assets freezes, travel bans,
1998 and 2002 in response to the devastating
arms embargoes, and commodity bans. They
humanitarian impacts of comprehensive
are applied to individuals and entities with the
sanctions on the civilian population in the
aim of changing their behaviour, constraining
former Yugoslavia, Haiti, and Iraq. The second
their behaviour, or signaling that their actions
moment of scrutiny and change emerged
fall outside generally accepted international
as an unexpected consequence of efforts to
norms. Article 25 of the UN Charter creates
make sanctions more targeted. As sanctions
a legal obligation on Member States to carry
measures became more individualized and
out the decisions of the UN Security Council,
UN SANCTIONS AND HUMANITARIAN ACTION 2discriminating, the procedures for listing and the inextricably linked to their legitimacy as a global
process required for de-listing individuals came policy tool. While the Security Council designs
under increased scrutiny.2 It was discovered and adopts the measures, it relies on others
that targeted listings were unduly impacting to implement them.3 When left unaddressed,
individuals’ and entities’ due processes past challenges have hurt the legitimacy of
rights, especially in the CT sphere. Reforms the measures in the eyes of other States. In
ensued. The UN sanctions instrument is now turn, questioning the legitimacy of sanctions
facing a third moment of scrutiny around the has led to less willingness on the part of States
impact of current sanctions measures on the to implement the measures. Accordingly, UN
humanitarian sector’s ability to consistently sanctions as a whole become less effective.
access and aid communities in need. Although Second, the previous two moments of change
not necessarily new for many humanitarian demonstrate that when faced with clear
actors, this issue has gained momentum in the evidence of adverse impacts, the UN Security
past few years, attracting attention both amongst Council has risen to the challenge and enacted
the broader set of sanctions implementers and reforms.4 Thus, there is reason to believe that
sanctions designers. the Security Council may be moved to act in
this case as well. By continuing to respond
This history of previous challenges and processes to new evidence and refine its tools, the
of reform of UN sanctions present two useful Council helps protect both their legitimacy and
lessons as we consider how to understand and their effectiveness.
subsequently address the current challenge.
The first lesson is that sanctions’ effectiveness is
III. Examining the current moment
Scrutinizing the impact of counter-terrorism measures in general
and sanctions in particular on humanitarian action
Over the last decade, there has been an field of CT. CT sanctions can be described as
increasing number of reports from humanitarian the targeted financial, diplomatic and embargo
organizations, UN humanitarian agencies, measures adopted either by the UN Security
civil society organizations and sanctions Council or by other regional organizations and
experts raising concerns that CT measures in States acting unilaterally in order to coerce a
general, and CT-related sanctions measures in change of behaviour or constrain the access
particular, are negatively impacting the ability to resources of specific individuals and entities
of humanitarian organizations to carry out their qualified as “terrorists.” When discussing the
activities in line with international humanitarian impacts of CT measures on humanitarian action,
law provisions.5 Broadly speaking, CT measures it is important to bear in mind that CT sanctions
consist in all of the international, regional and measures are only one aspect of the broader
national laws and other regulatory measures – CT framework, and apply alongside other CT
falling short of the use of military force – adopted measures, such as domestic penal laws.6 These
and implemented by international and regional different layers of measures, however, are
organizations, States, and private actors in the closely linked and feed off each other.7
UN SANCTIONS AND HUMANITARIAN ACTION 3Most of the research produced thus far has humanitarian workers when operating in
considered the proliferation of CT measures sensitive conflict contexts and when engaging
in general, especially measures to counter with non-State armed groups considered as
the financing of terrorism, and their impact “terrorists.” It is understandable that certain
on humanitarian organizations’ ability to humanitarian actors now fear that the rationales
carry out principled humanitarian action.8 underlying CT measures in general and CT-
More specifically, research has highlighted related sanctions in particular are eroding the
several negative impacts on humanitarian normative commitments of IHL. As a result,
action resulting, at least in part, from CT some of the research has concluded that
measures writ large, including financial hurdles, there is a tension between CT measures writ
operational delays, as well as concrete risks large and IHL, in particular IHL rules governing
for the security and safety of humanitarian humanitarian activities, IHL rules protecting
actors.9 If found in violation of CT measures, the wounded and sick as well as persons
humanitarian organizations may face risks of providing medical care, and IHL rules protecting
fines, prosecution and punishments under humanitarian personnel.14
domestic orders.10 Humanitarian organizations
Moreover, recent reports have explored several
are also increasingly facing overcompliance by
ways in which sanctions measures, in particular
private actors or donors, which further restricts
CT sanctions measures, have constrained
their ability to operate.11 For example, financial
principled humanitarian action. For example,
actors impose restrictions on, and costs for,
some reports have noted the role that sanctions
financial services to minimize their own risks of
can play in “dissuading donors from providing
liability. Moreover, a growing number of private
aid to certain regions, regardless of who is
actors refuse to provide services, such as bank
targeted or what derogations may be available,”
accounts or wire transfers, to jurisdictions where
unless a CT clause is included in the funding
targeted sanctions are imposed, regardless
agreement.15 In some cases, the presence of
of the number of individuals or entities listed.
sanctions has dissuaded donors from even
This has resulted in some humanitarian
providing aid at all.16
organizations choosing to restrain themselves
from operating in contexts under sanctions The negative impacts of CT sanctions on
in light of the growing operational costs and humanitarian action, however, are difficult to
challenges, as well as the ever-present risk isolate from the impacts of other international,
of fines and criminal charges (the so-called regional and national CT measures. 17
“chilling effect”). Nonetheless, research conducted to date
These de facto constraints on humanitarian provides initial evidence that the three main
sanctions measures used in efforts to counter
actors’ ability to operate in certain areas, or for
terrorism – asset freezes, travel bans, and
the benefit of certain categories of individuals,
sectoral embargoes – may all implicate and
challenge the fundamental requirement under
impede humanitarian action.18
international humanitarian law (IHL) according
to which humanitarian actors must operate in Of the three types of measures, asset freezes
an impartial manner, i.e. based on needs alone put humanitarian actors most at risk. First,
and without discrimination.12 These constraints sometimes, incidental payments to designated
also take a toll on the ability of humanitarian entities controlling territory, or risks of diversion
organizations to be perceived as neutral of relief supplies by designated entities and
actors by the parties to the conflict.13 In turn, individuals, are an unavoidable consequence
a perceived lack of impartiality and neutrality of operating in some areas controlled by groups
might endanger the safety and security of
UN SANCTIONS AND HUMANITARIAN ACTION 4listed on sanctions lists. Second, the provision of have to comply with restrictions on importing
certain goods or services, such as medical care dual-use goods.21
to war-surgery seminars or mediation trainings
Finally, travel ban measures also present some
to individuals under CT sanctions, might also
hurdles for humanitarians. They require States
contravene the assets freeze measure.19
to prevent the entry into or transit through
Sectoral embargoes, and notably arms their territories by designated individuals. In
embargoes, also present hurdles for other words, they prevent individuals from
humanitarian action. These embargoes crossing borders. They can be problematic
sometimes encompass “dual-use” objects which insofar as travel bans prevent humanitarian
can be used for military purposes but are also organizations from organizing protection or
needed to implement humanitarian activities.20 mediation trainings, both of which often require
When operating in regions or with parties the presence and, hence, the international travel
under sanctions, humanitarian organizations of designated individuals and entities.22
Looking beyond counter-terrorism sanctions
Despite this focus on CT, only one of the current lack information and knowledge regarding the
fourteen UN sanctions regimes has, as its often complex, and until more recently, rather
primary objective, the countering of terrorism. opaque, UN sanctions regimes. In addition, the
The remaining thirteen aim at different relatively limited scope of certain sanctions
purposes – mitigating conflict, abiding by a regimes (such as a travel ban on ten individuals
peace deal, stemming proliferation, countering in Guinea-Bissau) or the limited number of
non-constitutional changes of government, designations in other cases (e.g. four individuals
and deterring human rights and IHL violations. in Sudan) may also make it difficult to obtain a
The research on the impact of sanctions on general overview of impact. As a result of these
humanitarian activities in these other spheres, various factors, there is a significant gap in
however, is much scarcer. understanding of the interplay of UN sanctions
and humanitarian action beyond the CT realm.
Only a few studies have focused on cases
involving UN sanctions writ large and never This gap is significant given the implied
in isolation from other regional or unilateral international consensus around the use of UN
measures. Several reasons explain the sanctions – a consensus that is absent with
difficulties in engaging in such research. First, regards to regional and unilateral measures.24
studies have notably described the difficulty One study to date, however, found that UN
of isolating UN sanctions measures from sanctions regimes relating to situations
other regional and unilateral sanctions.23 In in Afghanistan, Somalia, the Democratic
addition, they note that gathering evidence of People’s Republic of Korea (DPRK) and Iran
impact can be a complicated task, considering have each created obstacles for humanitarian
the confidentiality inherent in the work of organizations.25 Obstacles have included denial
humanitarian actors. Moreover, humanitarian of financial services, difficulty importing goods,
actors may be wary of providing information and delays in obtaining exemptions.26 More
or analysis that could subject them to greater work needs to be done in this space, however,
scrutiny or potentially even legal action. In as most of the cases involving UN sanctions have
some cases humanitarian actors may simply yet to be substantially researched.
UN SANCTIONS AND HUMANITARIAN ACTION 5Calls for change and options for potential solutions
Academics and humanitarians have put forward needed humanitarian assistance in Somalia,”
several recommendations aimed at protecting and has been reported as having “a significant
impartial humanitarian action at the local, impact on the ability of partners to deliver life-
regional and international level. The changes saving aid and protection.”30 Despite being
they recommend seek to limit sanctions seen as the gold standard by many in the
regimes, domestic criminal laws, and restrictive humanitarian field, it has yet to be applied in the
clauses in donor agreements from preventing, other thirteen sanctions regimes and applies to
disrupting or restricting humanitarian only a subsection of humanitarian actors. Other
activities.27 The following paragraphs focus on more limited exemptions exist across all of the
their recommendations for sanctions designers existing UN sanctions regimes.
and implementers, be they the UN Security
UN exemptions, however, are not always
Council or Member States. Some of their
transposed into domestic orders. As a result,
recommendations have been implemented
they are not always available in practice to
but many have yet to be . Reports, echoing this
humanitarian actors. For example, many
discrepancy, have noted limited progress at the
States have failed to incorporate the Somalia
political and normative levels, while emphasizing
exemption into their domestic legal order,
the remaining lack of concrete measures and
and humanitarian organizations fear that
continued need for awareness-raising.28
the exemption might not offer them enough
Past research and coalitions of actors have protection against either legal liability or
frequently called for humanitarian exemptions reputational harm that would, in turn, impact
to asset freezes, travel bans and sectoral their ability to obtain funding and carry out life-
embargoes. 29 In theory, such exemptions saving humanitarian activities. Moreover, many
can benefit all those involved in principled States believe that, in the absence of existing
humanitarian action and in providing UN exemptions in UN sanctions regimes, they
humanitarian services in relation to a listed are legally prevented from adopting their own
individual or entity. In practice, however, exemptions when implementing these same
exemptions benefiting humanitarian actors at UN sanctions regimes. There is no basis for this
the UN, EU and State levels are rare. Moreover, assumption under IHL.
existing exemptions are often available only
Ad hoc derogations, otherwise known as
under specific conditions and are often
exceptions, authorize the conduct of activities or
restricted to specific humanitarian organizations
the import of goods under restriction only after
and specific contexts. Furthermore, these
approval by a relevant authority. For example,
exemptions are often granted solely for
all regimes at the UN level contain exemptions
“humanitarian relief” or “humanitarian
or derogations to the arms embargoes for
assistance” activities, which can lead to a
protective clothing benefiting humanitarian
restrictive interpretation, excluding protection
personnel. Beyond the derogations available to
activities otherwise permitted under IHL.
listed individuals on humanitarian grounds, only
Today, only one regime contains a blanket three regimes currently contain derogations
exemption to its assets freeze measures. to allow activities for the humanitarian needs
The 751 regime, relating to the situation in of, or humanitarian assistance to, civilian
Somalia, possess what is known as a “standing populations. The 1970 sanctions regime
exemption.” This exemption has, as its purpose: relating to the situation in Libya includes a
“ensur[ing] the timely delivery of urgently derogation to the assets freeze limited to
UN SANCTIONS AND HUMANITARIAN ACTION 6specific Libyan entities.31 The 1718 sanctions neutrality and independence enshrined in IHL.
regime contains a comprehensive humanitarian These operational principles aim to ensure that
derogation mechanism adopted in Resolution humanitarian activities are not implemented
2397 (2017).32 The Security Council adopted in a politicized or instrumentalized manner.
the latest ad hoc derogation for humanitarian They work as fundamental guarantees to
purposes in Yemen via Resolution 2511 (2020).33 enable humanitarian organizations’ access to
This derogation allows the relevant 2140 all those in need and to protect them against
Sanctions Committee to exempt activities from accusations of political interference, which could
sanctions measures on a case-by-case basis, if quickly threaten their safety and their access to
necessary, to facilitate the work of UN or other vulnerable populations.
humanitarian organizations in Yemen.
Humanitarian impact assessments are not a
Contrary to what many sanctions experts new practice but have been rarely used since the
assume, many humanitarian actors tend to find shift to targeted sanctions. The Security Council
ad hoc derogations problematic. First, processes required a humanitarian impact assessment
to obtain ad hoc derogations are complex, before imposing a timber ban in Liberia and a
time-consuming and have to be repeated, as ban on raw materials in the Democratic Republic
derogations are granted on a case-by-case of the Congo (DRC).34 In Sudan, a pre-assessment
basis. Second, derogations are unpredictable, report warning of adverse humanitarian
as there are no guarantees that a request for consequences played a part in the Security
a derogation will be granted. Third, ad hoc Council’s decision to refrain from strengthening
derogations or licenses are often limited in the existing sanctions.35 In 2015, the Security
scope, only benefiting specific actors or covering Council requested the Analytical Support and
specific activities. Thus, ad hoc derogations Sanctions Monitoring Team of the CT sanctions
processes may result in serious obstacles for regime to conduct an assessment of the impact
an effective and rapid humanitarian response. of the existing sanctions measures in order
to identify unintended consequences and
Perhaps most significantly, the concept of an unexpected challenges.36 The Team reported
ad hoc derogation contradicts the premise of several challenges faced by humanitarian
IHL and fundamental humanitarian principles. actors including greater hesitation and caution
Indeed, IHL already allows, delineates and among donors and de-risking practices, leading
protects the humanitarian activities of impartial to the need for humanitarian organizations
humanitarian actors, in particular by imposing to use informal channels to transfer money
specific obligations on parties to the conflict for operations.37
and third States. Elaborating additional
derogation procedures for humanitarian actors Inclusion of language safeguarding
“allowing” them to operate in conflict contexts humanitarian activities in counter-terrorism
– let alone setting out specific procedures to sanctions contexts. In 2019, the UN Security
apply to when, how and with whom they can Council adopted Resolution 2462 under
operate – contradicts the pre-existing rights of Chapter VII of the Charter, including language
humanitarian organizations and the obligations safeguarding humanitarian activities and
of parties to the conflict and third States under requiring compliance with IHL. Resolution
IHL. In addition, requiring that humanitarian 2462 is both part of the broader UN CT strategy
actors seek authorizations to operate and includes the one CT-related UN sanctions
from a political body such as the Sanctions regime. Breaking new ground, this resolution
Committees, or political authorities of Member “urge[d]” States to take into account the
States, endangers the operational principles of potential effect of CT measures on “exclusively
UN SANCTIONS AND HUMANITARIAN ACTION 7humanitarian activities, including medical counter the financing of terrorism”, comply with
activities, that are carried out by impartial States’ IHL obligations.39
humanitarian actors in a manner consistent
This language created an important benchmark
with international humanitarian law.” This caveat
for humanitarian actors. It called on States to
was meant to contrast with activities that are
ensure that all of their CT measures do not
not strictly humanitarian, such as development,
interfere with IHL provisions by demanding
peace or commercial activities, and to exclude
compliance with IHL. Thus, the language
aid agencies providing support in a partial
in Resolution 2462 constitutes a positive
manner.38 The resolutions also “demand[ed]”
step towards finding a balance between CT
that States ensure that “all measures taken to
imperatives on the one hand, and preservation
counter terrorism, including measures taken to
of impartial humanitarian action on the other.40
IV. Looking ahead: a call for further scrutiny
outside the counter-terrorism sphere
Research on the impact of CT measures regional, unilateral, and UN measures together.
(including CT sanctions) on humanitarian action As a result, a research gap remains regarding
provides an initial, crucial body of evidence. the particular impact of UN sanctions regimes
However, much remains to be understood as on humanitarian action in contexts where
part of a larger effort to illustrate the varied IHL applies.
interplay between other types of UN sanctions
This gap matters for two reasons. First, UN
and humanitarian action. As described above,
sanctions are the only type of sanctions
most of the research to date has focused on the
universally endorsed through the delegated
impact of CT measures on humanitarian space.
authority UN Members States have given to
Much of this work looks at the combined impacts
the Security Council, under Article 25. Thus,
of a range of CT measures, including sanctions,
in many ways they are held to a higher level
leading to the conflation of CT sanctions with all
of accountability than an individual State’s
CT measures.
measures. And second, UN sanctions tend to
In addition, very little previous research has be of a more limited nature than regional or
focused on the impact of sanctions measures unilateral measures. Yet, regional and unilateral
directed at conflict mitigation, non-constitutional measures often refer to the UN measures, using
changes of government, support for peace them as the basis for further action. As a result,
processes, and stemming violations of IHL, if the original UN measures are found to have
on humanitarian action. When research has deleterious effects in a given case, there is a
focused on these areas, it often looks at the strong basis to push for a change in their design
impact of sanctions in general on humanitarian and application.
action, and therefore considers the impact of
UN SANCTIONS AND HUMANITARIAN ACTION 8Areas of complementarity and tension
There is nothing inherently contradictory These principles are translated into action
between IHL provisions and UN sanctions, through the sanctions regimes’ designation
as defined in Article 41 of the UN Charter. criteria. The majority of the sanctions regimes
In fact, the design of sanctions regimes can now include designation criteria on which the
be complementary to the application of IHL Security Council can act in order to prevent
rules. For example, by deterring attacks on or put a stop to abuses and impediments to
humanitarian workers or interference with humanitarian relief. Eight of the conflict-related
the delivery of assistance, UN sanctions can sanctions regimes include a general designation
help protect humanitarian space. Indeed, UN criterion of “violations of IHL.” Moreover,
sanctions regimes applied to conflict contexts six conflict-related sanctions regimes also
have always included language and provisions include stand-alone designation criteria based
illustrating the intent or the willingness of the on the obstruction of humanitarian access,
Security Council to use sanctions as a tool to help impediments to the delivery or distribution
facilitate the delivery of humanitarian assistance of humanitarian assistance, and/or attacks
and to protect humanitarian organizations from against humanitarian personnel. Although only
unlawful actions and abuses of the parties to a handful of the groups and individuals have in
the conflict. practice been listed for obstruction of access
and delivery or attacks against aid workers,
Almost all of the Security Council resolutions the Security Council often includes language
underpinning the conflict-related sanctions reiterating its intent to impose sanctions on
regimes emphasize the importance of securing those who would engage in such prohibited
humanitarian access and humanitarian acts. This threefold approach demonstrates that
assistance and to protect humanitarian protection of humanitarian access, assistance
personnel to respond to the needs of civilians. and personnel is one of the objectives
This is not a new practice, as former sanctions of sanctions.
regimes also often included similar language
requesting full and unhindered access of relief At the same time, existing tensions between IHL
personnel to all those in need. Current sanctions and sanctions measures are undeniable and
regimes include frequent and standardized have been at the forefront of the debate in recent
language condemning the obstruction and years. For example, the unconditioned inclusion
misappropriation of humanitarian assistance; of medical-related activities as part of the listing
condemning the targeting of and attacks criteria for several individuals and entities under
against humanitarian personnel; and recalling the CT regime may not be consistent with IHL
the corresponding obligations to ensure full, protections for impartial medical care to all
safe and unhindered humanitarian access to all wounded and sick and persons hors de combat.
those in need. In addition, in all but one of the Humanitarian actors are reporting increasing
conflict-related sanctions regimes, the Security incidents in contexts where aid is blocked or
Council insists on the obligation of parties to delayed due to the implementation of sanctions
the conflict to comply with their obligations measures. Conflict-related sanctions regimes,
under IHL. These resolutions also recall the in contrast to the CT sanctions regime, fail to
corresponding IHL obligations to ensure full, explicitly remind States of their obligations to
safe and unhindered humanitarian access as comply with IHL. This lapsus may lead States to
well as the safety and security of humanitarian prioritize their sanctions obligations over their
personnel and supplies. IHL obligations when these appear to conflict.
UN SANCTIONS AND HUMANITARIAN ACTION 9Simultaneously, little is known regarding current saving assistance and protection. The second
best practices, modalities and tools available for risk is that, despite the widespread presence
mitigating the adverse impacts of conflict-related of language protecting and promoting
sanctions measures on humanitarian action. humanitarian action in current UN sanctions
Additionally, there is little policy guidance for regimes, opportunities to constructively act on
both humanitarian and sanctions practitioners this basis may be missed. Already there is some
on how to navigate the interplay of their fields.41 sense from corners of the humanitarian sector
that such language currently serves only as a
The absence of known mitigating measures decorative flourish rather than as a substantial
and the lack of guidance for States presents to and tested basis for action. The development
significant risks. One risk is that States and private of guidance documents, in partnership with
actors might interpret their implementation the relevant communities, could help mitigate
obligations in a way that restricts, delays, or both of these risks by standardizing regional and
impedes the delivery of humanitarian activities, domestic implementation measures, capitalizing
thus preventing organizations from fulfilling on areas for cooperation, tempering incentives
their mandate under IHL. In turn, this would to de-risk, and reducing inadvertent violations.42
limit vulnerable populations’ access to life-
Comparing counter-terrorism and conflict sanctions contexts and
implications for research findings
While future research should build on previous regimes, Council members only included
work from the CT and sanctions sphere, similar references to IHL and humanitarian
researchers also need to consider potential activities in the CT regime following an intense
differences between CT and armed conflict and hard-fought advocacy campaign. Likewise,
settings.43 There are four primary differences. while the CT sanctions regime tends to focus
First, the primary purpose of UN sanctions on misappropriation and abuse of aid as
regimes in conflict settings remains the a source of financing of listed groups and
resolution of a conflict through a negotiated individuals, the conflict-related regimes focus on
settlement – not the deterrence of terrorist misappropriation as one of a number of actions
affiliated groups.44 By contrast, the one CT hindering the delivery of humanitarian relief to
sanctions regime only aims to constrain ISIL-Al populations in need.45
Qaeda and affiliated groups and not to bring
The CT regime emphasizes the need for States
them to the negotiation table and, eventually,
to adopt a risk-adverse approach and refers
back into the mainstream political fold. This
heavily to the Financial Action Task Force’s (FATF)
fundamental difference in the underlying
recommendations regarding “the risk of abuse
purposes of sanctions regimes in the CT
of non-profit organizations by terrorist groups
and the conflict sphere might impact States’
and networks.”46 More broadly the CT context
interpretation of the sanctions measures.
does not tolerate risk and mostly appears as a
For example, States might be more likely to
strict liability regime where the intent of an actor
scrutinize humanitarian organizations engaging
is irrelevant to the offense. It does not matter
with listed non-State armed groups in the CT
whether a given humanitarian organization
sphere than the conflict sphere.
supported or contributed intentionally or
Moreover, while the inclusion of language without prior knowledge of wrongdoing to the
defending humanitarian activities is already resources of the listed entity.
quite common in conflict-related sanctions
UN SANCTIONS AND HUMANITARIAN ACTION 10By contrast, FATF recommendations do not under Chapter VII. This framework imposes
apply, to the same extent, in conflict-related general and abstract rules binding on all UN
sanctions regimes. This may give the impression Member States, a trend which started with
that financial sanctions applied in non-CT resolution 1373 (2001). In particular, through
contexts may not need to be subjected to an this framework, resolutions 1373 (2001) and
equally rigorous review, especially regarding 2462 (2019) impose obligations on States to
the risks of abuse of humanitarian aid. This criminalize the financing of terrorism in their
difference in focus could very well lead to a domestic orders. 47 By contrast, in non-CT
differentiated interpretation of the scope of settings, States have the discretion to decide the
sanctions measures, especially the assets type of penalty to institute in relation to national
freeze and the designation criteria prohibiting actors’ non-compliance with UN sanctions. As
support. As a result, it is conceivable that a result, States may be less severe regarding
sanctions implemented in the armed conflict sanctions violations in the conflict context than
contexts may have fewer negative impacts on in the CT context, with potential repercussions
humanitarian activities. on private actors’ approach to risk when working
with humanitarian actors in both spheres.
A final significant difference between the
armed conflict sphere and the CT sphere may In summary, all of these distinctions could
lead to different research results. The single nourish different interpretations and
UN CT sanctions regime is part of a larger implementation practices in conflict contexts
CT political and legal framework developed and, in turn, produce quite varied impacts on
by the UN Security Council over the years humanitarian action.
A note on combined counter-terrorism and armed conflict settings
While it is important to appreciate general to address this overlap.48 In the other cases, the
differences between the armed conflict and design has remained out of step with the way
CT contexts, in an increasing number of cases, in which sanctions are being used. As a result,
these spheres overlap. From Somalia to Mali humanitarian space is being limited in these
and from Yemen to Afghanistan, the application contexts, in large part due to the importation of
of UN sanctions has increasingly turned to both CT goals into an armed conflict context, without
conflict mitigation and countering terrorism. In the subsequent importation of the humanitarian
some of these contexts, the Security Council has safeguards that exist in the primary CT regime.49
updated the design of their sanctions regimes
V. Presenting an agenda for future research
In summary, there is a pressing need to on further study: existing substantive gaps in
understand the impact of UN sanctions beyond knowledge, a need for more terminological and
the CT sphere, as only one of the current 13 UN conceptual clarity, and a realistic understanding
sanctions regimes focuses exclusively on CT. Any of the challenges inherent to the research
future research agenda will need to take three methodology.
elements into consideration when embarking
UN SANCTIONS AND HUMANITARIAN ACTION 11Terminology
In the research conducted thus far, common consensus where no real differences exist.
language often remains elusive, at times leading Thus, there is a pressing need for future
to critical misunderstandings between the CT research to look for conditions which would
and sanctions field on the one hand, and the help to generate consensus and propose
sanctions and IHL field on the other. Six terms a standard definition for these terms so
warrant particular attention: that new work – both within and across
the two fields – can speak from a common
1. First, future research endeavours should foundation of understanding.52
aim to distinguish between instances of
“direct” or “primary” impact and “indirect” 4. Fourth, there is general confusion and lack
or “secondary” impact. While the effects on of terminological clarity on the meaning
humanitarian action may be similar, the plan of “impact.” To begin, there is a need to
for mitigating impact varies considerably as distinguish more systematically between
well as the political coalition needed to push three types of impact: first, the impact on
for change. the affected population; second, the impact
on humanitarian activities and; third, the
2. Second, within the sanctions literature, impact on the impartial and humanitarian
there is common reference to the term character of the humanitarian sector. Within
“unintended consequences.” The term is category two, the impact on humanitarian
used to refer to the type of effects described activities, there is also a need to parse the
in this paper. Just as a closer look at the effects on humanitarian access on the
meaning and type of “impact” would help one hand and humanitarian activities of
clarify the meaning of “consequences,” assistance and protection on the other.
a more studied look at the intentions of Such a studied distinction in future work
designers and implementers would help would help better ground arguments for
shine more light on what has otherwise further adjustments in existing international
been a long ignored or perhaps overly legal frameworks.
simplified description of the phenomenon
under study. 5. Fifth, and similarly, future research would
do well to clarify the origins and importance
3. Third, there is a critical issue of terminology of the terms “impartial” and “neutral” in
around the use and meaning of the terms descriptions of humanitarian organizations,
“exception” versus “exemption.” 50 The when discussing appropriate derogations
UN uses the terms as they are employed and safeguards. Most individuals in
in this paper. By contrast, at the EU level, the sanctions community will not be
the meaning of the terms is reversed. In familiar with the debates around these
a similar vein, the Interlaken Manual on terms. As a result, they are less likely to
Targeted Financial Sanctions follows a appreciate the potential impact their
similar approach to the EU.51 As a result, measures may have, either in support of
there is a general confusion of terms or in contravention to these fundamental
both within the sanctions community concepts. Rather, sanctions experts and
and amongst humanitarian practitioners. practitioners are more accustomed to
The terminological confusion has led to a considering humanitarian actors as one
tendency for past work to either mistakenly uniform category.
concur on points of divergence or to seek
UN SANCTIONS AND HUMANITARIAN ACTION 126. Finally, amongst the community of such a thing as zero risk, and, if not, what an
sanctions implementers on the one acceptable level of risk tolerance should look
hand and government regulators on the like. This debate is key to any future research
other, there is a persistent terminological on potential measures for mitigating the
and conceptual debate at the heart of impact of sanctions due to overcompliance
discussions around compliance, as well and de-risking. Further terminological clarity
as a lack of understanding regarding the would assist in building consensus around
operational realities faced by humanitarian currently divergent approaches to risk and
organizations. This debate centers around conceptions of acceptable risk.
the question of whether or not there is
Substantive areas for further research
Foremost on any future research agenda and recommend measures that could mitigate
should be the primary and secondary impacts negative impacts and amplify positive impacts
of the remaining thirteen sanctions regimes on identified at the sanctions design, interpretation,
humanitarian action, given how substantially application and adjustment stages.
these regimes differ from the one CT sanctions
An additional area of investigation that is ripe
regime. However, such an analysis should
for further research is the extent to which
not limit findings from the start by searching
States can and must take IHL into account
for only negative impacts. Rather, there is an
when implementing UN sanctions in armed
under-researched element of sanctions regimes
conflict settings. Studying implementation,
that sees them as one source of deterrence in
however, remains an ongoing challenge given
efforts to uphold IHL and protect humanitarian
the variety of approaches amongst the 193
space. Accordingly, there is a need for a dual-
members of the UN as well as the complexity of
pronged research agenda: one that looks for a
the inter-governmental process often involved
potential negative impact of sanctions measures
in implementation. Short of a comprehensive
on humanitarian action and one that looks for
analysis of State implementation, policy actors
potential positive impacts. Both prongs will
may still benefit if future research identifies best
have to treat the issue of impact carefully, as
practices from select States, such as those which
described above, given previous findings that
have managed to apply UN sanctions measures
secondary impacts, which are less directly
effectively while remaining in compliance with
attributable to sanctions measures, can have
their IHL obligations.
more noticeable effects. As part of this dual-
research endeavour, researchers should identify
Methodological challenges
Future research will have to take into around how to most accurately and efficiently
consideration and look to surmount two key measure impact. This challenge can largely be
methodological challenges. Some of these divided into two subsequent hurdles: sourcing
challenges are simply inherent to this field of and validating information and establishing a
study. Paramount amongst these is the debate causal chain.
UN SANCTIONS AND HUMANITARIAN ACTION 13On the first point, previous studies have relied restricted access, diminished assistance, and
on self-reporting by humanitarian actors, hampered protection activities, to name a few.
which, in turn has resulted in criticism from One current study is looking precisely at the
sanctions experts, architects, and government challenge of establishing a casual chain between
stakeholders, who point both to the self- the application of CT measures writ large and the
reporting bias as well as to the lack of concrete impact on humanitarian action.56
details supplied to back-up anecdotal evidence.53
One could consider an alternative approach
Many humanitarian actors have often rejoined
that looks to use counter-factuals to gauge
that detailed reporting is impossible given the
impact, as has been much explored in the area
confidentiality inherent in their work. Moreover,
of conflict prevention.57 Looking for the impact
previous research efforts have cited challenges
of a non-event has the advantage of simplifying
in reporting due to practitioners’ wariness of
contextual factors and better isolating a policy
admitting to conduct that, while covered by
contribution. In this setting, rather than looking
IHL, may nevertheless be interpreted by some
at the most severe instances of impeded access
States as prohibited under an existing UN
or diminished assistance, one could instead
sanctions regime. This, therefore, precludes
look at cases where UN sanctions co-exist with
cross-sectional studies on a sufficiently large
humanitarian activities and seek to understand
scale.54 An entity trusted by both communities
what enables them to co-exist productively.
could consider engaging in such a project in the
Any such study will, of course, have to account
future, given adequate resources and access,
for situational differences, such as the scope
while noting that it may be extremely difficult to
of the existing UN sanctions, the presence of
effectively undertake such an initiative in light of
additional non-UN sanctions, the degree of
prevailing circumstances.55
stigmatization of the actors involved, and the
The second challenge exists in attempting existence of additional measures such as UN
to establish a causal link between a policy peace operations or foreign military occupation.
intervention and outcome. This is a challenge Lastly, the counter-factual approach could also
that has plagued many fields of applied be used to examine instances of best practices
research. It is particularly fraught in the realm when it comes to the degree of compliance
of sanctions given the myriad of factors with IHL rules regulating humanitarian access
influencing the outcomes in question – and activities.
VI. Conclusion
It is important to understand what is at of armed conflicts, as envisaged under IHL.
stake in this third moment of scrutiny of the In the mid- to long-term, addressing frictions
UN sanctions tool. It is an opportunity for through careful adjustments to the sanctions
change. Addressing instances of negative tool can help maintain both the legitimacy and
impact effectively can serve to ensure that the the effectiveness of UN sanctions. The current
legitimate end of maintaining international research demonstrates that the stakes are
peace and security through sanctions is not at high – if actors feel they cannot both maintain
the expense of meeting the needs of victims access and protect humanitarian activities
UN SANCTIONS AND HUMANITARIAN ACTION 14in compliance with IHL, while implementing actionable paths forward that both protect
sanctions, it is likely that instances of non- humanitarian action and enable compliance
compliance will only increase. Alternatively, with UN sanctions, then there is potential for
humanitarian organizations, unwilling to risk the two sets of activities to work in tandem and
non-compliance, may choose to increasingly to ensure that compliance with sanctions is not
disengage from conflicts contexts under UN at the expense of meeting the needs of victims
sanctions. In contrast, if future research can of armed conflicts as envisaged by IHL.
better identify the sources of friction and suggest
UN SANCTIONS AND HUMANITARIAN ACTION 15References
1 United Nations, Charter of the United Nations, (New York: United Nations: 1945): Article 41. The Security
Council may decide what measures not involving the use of armed force are to be employed to give
effect to its decisions, and it may call upon the Members of the United Nations to apply such measures.
These may include complete or partial interruption of economic relations and of rail, sea, air, postal,
telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
2 James Cockayne, Rebecca Brubaker, and Nadeshda Jayakody, Fairly Clear Risks: Protecting UN sanctions’
legitimacy and effectiveness through fair and clear procedures (New York: United Nations University, 2018).
3 Although all States are legally required to implement all UN Security Council decisions, hence
including sanctions measures, the practice does not always match the theory. In practice, some States
automatically implement Security Council decisions. Other States filter the Security Council decisions
through their own courts and only implement what they feel is legally sound.
4 In the case of challenges regarding due process safeguards, reforms were more modest and related
principally to the CT sanctions regime.
5 Among other sources, see in particular: Alice Debarre, Making sanctions smarter: safeguarding
humanitarian action, Policy (New York: IPI, 2019); Norwegian Refugee Council, Principles under pressure:
the impact of counter-terrorism measures and preventing/countering violent extremism on principled
humanitarian action (Oslo: NRC, 2018); Dustin A. Lewis, Naz K. Modirzadeh, and Gabriella Blum, Medical
Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism (Cambridge,
Mass.: Harvard Law School Program on International Law and Armed Conflict, 2015); Emanuela-
Chiara Gillard, Recommendations for reducing tensions in the interplay between sanctions, counter-
terrorism measures and humanitarian action (London: Chatham House, 2017); Emanuela-Chiara Gillard,
Humanitarian Action and Non-state Armed Groups: the international legal framework (London: Chatham
House, 2017); United Nations Security Council, “8499th meeting: The promotion and strengthening of
the rule of law, with a focus on International humanitarian law,” United Nations, 1 April 2019, S/PV.8499:
6-7. “In my view, the question is not whether counter-terrorism measures might adversely affect
principled humanitarian action, but the scope and scale of that impact.”
6 These laws criminalize all form of support to listed groups and individuals, or CT clauses in funding
agreements.
7 For example, counter-terrorism sanctions taken at the international or regional levels are implemented
in domestic orders, with a ripple effect into domestic legislation and implementation practices of
private actors, but also come from and reflect States already existing counter-terrorism laws and
policies. Counter-terrorism clauses in funding agreements often request humanitarian organizations to
not engage with individuals and entities designated in UN, EU or States counter-terrorism lists.
8 For the purposes of these papers, the terms “humanitarian organizations” and “humanitarian actors”
are used interchangeably and meant to include all non-governmental organizations, civil society actors
and UN agencies operating in an impartial manner and engaging in exclusively humanitarian activities.
Among other specific reports, see most recently: Tom Keatinge, Uncharitable Behavior and Banks That
Drop Nonprofit Customers (London: RUSI, 2019); Ben Hayes, The impact of international counter-terrorism
on civil society organisations Understanding the role of the Financial Action Task Force (Washington DC:
Bread for the World, 2017); Tom Keatinge and Florence Keen, Humanitarian Action and Non-state Armed
Groups: the impact of banking restrictions on UK NGO (London: Chatham Housem 2017); Stuart Gordon,
Alice Robinson, Harry Goulding, and Rawaad Mahyub, The Impact of Bank De-risking on the Humanitarian
Response to the Syrian Crisis (London: ODI, 2018); Stuart Gordon and Sherine El Taraboulsi-McCarthy,
Counter-Terrorism, Bank De-risking and Humanitarian Response: A Path Forward: Key Findings from Four
Case Studies (London: ODI, 2018): 2;
Kate Mackintosh and Patrick Duplat, Study of the Impact of Donor Counter-terrorism Measures on
Principled Humanitarian Action (Geneva: UNOCHA and NRC, 2013); Sherine El Taraboulsi-McCarthy
with Camilla Cimatti, Counter-terrorism, De-risking and the Humanitarian Response in Yemen: A Call for
Action (London: ODI, 2018).
UN SANCTIONS AND HUMANITARIAN ACTION 169 See, for instance the IPI report, listing seven ways sanctions regimes can impact humanitarian action.
Alice Debarre, Making sanctions smarter : safeguarding humanitarian action (New York: IPI, 2019) See
also, Norwegian Refugee Council, Principles under pressure: the impact of counter-terrorism measures and
preventing/countering violent extremism on principled humanitarian action (Oslo: NRC, June 2018).
10 Alice Debarre, Making sanctions smarter: safeguarding humanitarian action (New York: IPI, 2019) ;
Norwegian Refugee Council, Principles under pressure: the impact of counter-terrorism measures and
preventing/countering violent extremism on principled humanitarian action (Oslo: NRC, June 2018);
Emanuela-Chiara Gillard, Recommendations for reducing tensions in the interplay between sanctions,
counter-terrorism measures and humanitarian action (London: Chatham House, 2017).
11 Emanuela-Chiara Gillard, Humanitarian Action and Non-state Armed Groups: the international legal
framework (London: Chatham House, 2017) ; Alice Debarre, Making sanctions smarter: safeguarding
humanitarian action (New York: IPI, 2019); High Level Review of United Nations Sanctions, Compendium
(New York: United Nations, 2015), A/69/941-S/2015/432: 66. “Some private sector actors, confused
by differing unilateral, regional, and UN sanctions, or generally risk-averse and aiming at minimizing
implementation costs, apply policies resulting in over-compliance, including foregoing legitimate
business with entities not subject to UN sanctions, or even all business with a particular country”; Tom
Keatinge, Uncharitable Behavior and Banks That Drop Nonprofit Customers (London: RUSI, 2019); Stuart
Gordon, Alice Robinson, Harry Goulding, and Rawaad Mahyub, The Impact of Bank De-risking on the
Humanitarian Response to the Syrian Crisis (London: ODI, 2018).
12 Note that IHL is applicable only in relation to situations of armed conflict. Only some, not all, sanctions
are applied in relation to such situations.
13 Neutrality is not a required condition under IHL, but it is considered a fundamental operational
principles for humanitarian action.
14 Emmanuela-Chiara Gillard, Humanitarian Action and Non-state Armed Groups: the international legal
framework (London: Chatham House, 2017); Naz K Modirzadeh, Dustin A. Lewis and Claude Bruderlein,
“Humanitarian engagement under counter-terrorism : a conflict of norms and the emerging policy
landscape,” International Review of the Red Cross 93, 883 (2011)
15 High Level Review of United Nations Sanctions, Compendium, (New York: United Nations, 2015),
A/69/941-S/2015/432: 66; Norwegian Refugee Council, Principles under pressure: the impact of counter-
terrorism measures and preventing/countering violent extremism on principled humanitarian action (Oslo:
NRC, 2018), Emanuela-Chiara Gillard, Recommendations for reducing tensions in the interplay between
sanctions, counter-terrorism measures and humanitarian action (London: Chatham House, 2017).
16 Alice Debarre, Making sanctions smarter : safeguarding humanitarian action (New York: IPI, 2019): 11
17 Ibid: 8: “It is important to note that the impact of sanctions on humanitarian activities is closely linked
to the proliferation of other types of counter-terrorism measures, which is also restricting the ability of
humanitarian actors to operate. The coexistence of sanctions and other counter-terrorism measures in
some contexts creates a restrictive environment for humanitarian actors, and their compounded effect
leads to some of the challenges described.”
18 Ibid.
19 Katie King, Naz K. Modirzadeh, Dustin A. Lewis, Understanding Humanitarian Exemptions: UN Security
Council Sanctions and Principled Humanitarian Action (Cambridge, Mass.: Harvard Law School, 2016);
Emanuela-Chiara Gillard, Recommendations for reducing tensions in the interplay between sanctions,
counter-terrorism measures and humanitarian action (London: Chatham House, 2017)
20 Alice Debarre, Making sanctions smarter: safeguarding humanitarian action (London: IPI, 2019).
21 Where a humanitarian derogation to the restriction exists, long and tedious approval procedures often
result in increased costs and operational delays. Moreover, applying for a derogation can be seen as
compromising the independence of humanitarian organizations as it puts their work at the discretion
of a political body or authority. Such a limitation directly contradicts humanitarians’ “right of initiative”
under IHL.
22 Katie King, Naz K. Modirzadeh, Dustin A. Lewis, Understanding Humanitarian Exemptions: UN Security
Council Sanctions and Principled Humanitarian Action (Cambriodge, Mass.: Harvard Law School, 2016): 7
23 Alice Debarre, Making sanctions smarter: safeguarding humanitarian action (New York: IPI, 2019)
24 Brubaker, R. and Huve, S., (forthcoming December 2020).
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