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  • The Gender Security Project

Mind the Gap: UNSC Counterterrorism, Sanctions, and Humanitarian Action

By Naureen Chowdhury Fink


On December 17, 2021, the UN Security Council unanimously adopted resolution 2611, extending the mandate of the the 1267/1988 Analytical Support and Sanctions Monitoring Team for a period of twelve months. (UN Photo/Manuel Elías)


For nearly two decades, humanitarian action and counterterrorism have been presented as mutually exclusive goals, even though the delivery of critical aid and protecting civil society organizations would help in preventing terrorism and violent extremism—in addition to building resilience—because terrorist groups exploit grievances and the instability often generated by armed conflict and poor governance. Instead, the intersection of counterterrorism sanctions and humanitarian activity has generated significant tensions. This stems from four key concerns raised by humanitarian actors: the risk of criminalization of humanitarian activity for providing material support to terrorist groups, and a chilling effect on humanitarian actors; overcompliance with counterterrorism measures leading to de-risking and financial exclusion, and the impediment of civil society actors access to financial services; increasingly intrusive donor clauses and expectations that risk compromising the impartiality of humanitarian assistance; and limitations on accessing communities in need.


There are also longstanding concerns about the due process and human rights impacts of the 1267 al-Qaida/ISIL sanctions regime (though the establishment of the Office of the Ombudsperson has been one way to help mitigate this, and discussions about replicating this mechanism in other regimes would greatly benefit from a critical assessment of its role and impact to date).


Changes to United Nations (UN) Security Council counterterrorism frameworks have come slowly, due in large part to the tensions between counterterrorism laws and international humanitarian law (IHL), the different perspectives on these frameworks between states, and disagreements even among different branches of some governments. The proliferation of counterterrorism resolutions and measures has led to increased confusion about where the regimes meant to counter terrorism intersect with those regarding armed conflict, creating challenges in determining permissible acts, accountability, and access to all actors, among others.


For many counterterrorism policymakers and practitioners, there are questions around if there is a causal relationship between sanctions measures and challenges to the delivery of humanitarian assistance; if there is enough well-documented evidence or metrics to exhibit such a relationship; and, ultimately, if changes to counterterrorism measures would meaningfully address the negative impacts highlighted by many civil society and humanitarian actors. Several state officials and counterterrorism practitioners have expressed concerns both privately and publicly that loosening counterterrorism measures and sanctions would empower and enrich terrorist groups and reduce any deterrence to supporting such groups. Nonetheless, as states and practitioners have confronted the widespread need to deliver critical humanitarian assistance in several settings where terrorist groups are also operating, the momentum for creating greater opportunities for the safe delivery of humanitarian assistance has grown.


For nearly two decades, the Security Council did not address this issue explicitly beyond adding the customary phrase that all counterterrorism measures must be in compliance with international law, “including international human rights, humanitarian, and refugee law,” without further defining the parameters of this compliance. In 2019, the Council took a significant step forward in making more explicit the importance of protecting principled humanitarian action in counterterrorism contexts in resolutions 2462 (2019) and 2482 (2019), though members could not agree on the more assertive language put forward by some negotiators.


Since the passing of the 1267 regime, the prospect of adding a humanitarian exemption or exception (also called a “humanitarian carve-out”) has seemed unlikely, mostly because permanent members of the Security Council are concerned about the diversion of aid by terrorist groups and the enforcement of material support laws, and the potential for non-profit organizations to be exploited by terrorist groups, hearkening back to the role of certain non-profit organizations in relation to the 1998 East Africa bombings by al-Qaida, for example. Recently, however, there have been optimistic signs that a humanitarian carve-out may become a reality, as political leaders—most significantly in the United States—have recognized the importance of well-crafted exceptions as key to ensuring humanitarian access while still enforcing sanctions regimes as an instrument of foreign policy.


Some states have reportedly considered sidelining the counterterrorism sanctions that, as a knock-on effect, could help humanitarian efforts. However, to be meaningful, any discussion of facilitating humanitarian aid more effectively in conflict situations would have to include a humanitarian carve-out within the 1267 regime, which could allow for effective aid delivery in critical contexts while maintaining the sanctions regime and allowing for robust counterterrorism, rather than setting them up as mutually exclusive goals.


The inability—or unwillingness—of Council members to designate al-Shabab as a terrorist group has raised questions about the value and effectiveness of a 1267 regime that cannot list one of the most effective and lethal al-Qaida affiliates. Some African counterterrorism stakeholders have claimed a double standard and called for the listing of the terrorist groups generating violence on the continent, rather than only those threatening Western states and interests. A well-crafted humanitarian carve-out could ensure a more robust and credible 1267 regime while also addressing the need for humanitarian assistance—especially given the increasingly recognized linkages between terrorism and armed conflict. It would, however, be important to draw on lessons learned from existing examples to ensure its suitability and effectiveness.


Two sanctions regimes, in particular, have informed discussions on the proposal for a humanitarian exception in sanctions: Somalia/al-Shabab sanctions pursuant to UN Security Council Resolution (UNSCR) 751 (1992)—which does not designate them as a terrorist group—and the more recent humanitarian carve-out in the Afghanistan sanctions regime, agreed in UNSCR 2615 (2021). However, there have been initial reports that the carve-outs have not always meaningfully improved the delivery of assistance or addressed the concerns about the impact of counterterrorism legislation and frameworks. A recent Human Rights Council report on Afghanistan, for example, noted that “despite the humanitarian exemption included in UNSCR 2615 (2021), its application by the relevant international actors raises serious questions as it appears to contribute to the humanitarian crisis.” The report added that “humanitarian access continues to be impeded: between 1 January and May 23 2022, there were 185 incidents of interference in humanitarian activities, compared with 138 during the same period of 2021. Female aid workers have also reportedly been threatened and intimidated by local de facto authorities.”


In November, several UN experts released a statement saying they were deeply concerned “at the deep social, economic and humanitarian disruptions caused by extensive and multifaceted restrictions emanating from both targeted, sectoral, economic and financial unilateral sanctions regimes, which can hardly be counter-balanced and mitigated by the existing humanitarian carve-outs, such as for food, medicines, and medical equipment, among others.” Moreover, they added, “We remain concerned about the cumulative adverse effects of unilateral sanctions jointly with existing counter-terrorism and terrorism financing frameworks, such as the US material support statutes, 18 U.S.C. §§2339A and 2339B, and the 2022 European Commission’s Guidance Note which appears to shift the burden of proof for compliant conduct onto humanitarian actors, to preserve ambiguity around the issue of liability, as a sword of Damocles hanging over them.”


These initial assessments suggest that, alone, a humanitarian carve-out in the sanctions regime, while valuable, may not address the concerns of humanitarian actors. A notable omission in much of the discourse has been the impacts and influence of UNSCR 1373 (2001) and wider counterterrorism measures that can affect domestic legislation, private sector behavior, and donor policies. The resolution, adopted in the wake of the attacks of September 11, 2001, took an unprecedented approach in obliging states to adopt a sweeping set of counterterrorism laws and measures intended to deny terrorist groups safe haven and resources; over the past two decades, states have been actively encouraged to transpose these obligations into their national counterterrorism laws and policies.


Consequently, many of the concerns raised by humanitarian actors in terms of risks of criminalization, material support, and de-risking may also be ascribed to the influence of UNSCR 1373 and its subsequent iterations, including, most recently, UNSCR 2462 (2019).

Many of the obligations set out in these resolutions have also been reinforced through other intergovernmental bodies like the Global Counter-Terrorism Forum and the Financial Action Task Force (FATF), whose interactions with states also reinforce Council resolutions or, vice versa, shape outcomes in the Council. Thus, introducing a humanitarian carve-out in the 1267 counterterrorism sanctions regime without considering the impacts and outcomes flowing from UNSCR 1373 may leave unaddressed many of the challenges associated with ensuring the protection of principled humanitarian assistance in contexts that include designated terrorist groups.


But there may be many ways for the Council to address this. Security Council members could choose to take on these issues through internal working practices and policy guidance agreed in the Counter-Terrorism Committee—such as Policy Guidance notes or amendments to the Technical Guide, for example—to guide the interaction of the Counter-Terrorism Executive Directorate (CTED) in their interactions with states, given their mandate to assess and monitor implementation of the resolutions. This would allow them to gather information on the use and impacts of humanitarian exceptions and counterterrorism measures, engage in dialogue with states about ensuring the protection of humanitarian activities, as well as gather on issues relating to the impact of the counterterrorism measures on the delivery of humanitarian assistance.


A more effective and decisive means, however, could be to adopt a stand-alone Security Council resolution, building on the progress made in resolutions 2462 and 2482, mandating states to create a humanitarian carve-out that is in line with their own legal counterterrorism frameworks and to report back to the Council on the specific legislation proposed, as well as catalyzing a multi-stakeholder process involving the UN, the private sector, states, and civil society to promote dialogue and guidance to mitigate the impacts of de-risking and overcompliance.


Moreover, the resolution could also task various parts of the UN system to work with the private sector and civil society to address the issue of de-risking and harmonize the approaches taken by the UN, the FATF, and national bodies. Already the FATF has taken steps to mitigate unintended consequences of its standards; the Security Council could do the same. In addition to a humanitarian carve-out in the 1267 regime, this would prompt greater consistency across the Security Council and promote greater clarity for states, the private sector, and civil society. Absent a more comprehensive approach, an exception in the 1267 regime alone, while potentially valuable, will not address the full range of challenges that impede the delivery of critical humanitarian assistance.



This post first appeared on The Global Observatory.

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