1 The ten sanctions regimes applied in armed conflict contexts with the primary goal of resolving the conflict are Somalia, the Democratic Republic of the Congo (DRC), Yemen, Mali, Sudan, South Sudan, the Central African Republic (CAR), Libya, Iraq (formal occupation regime) and 1988 (Afghanistan).

2 Charter of the United Nations, 1 UNTS XVI, 24 October 1945 (UN Charter), Art. 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.”

3 Rebecca Brubaker and Thomas Doerfler, UN Sanctions and the Prevention of Conflict: A Thematic Paper for the United Nations–World Bank Study on Conflict Prevention, United Nations University, August 2017, available at: https://collections.unu.edu/eserv/UNU:6431/UNSanctionsandPreventionConflict-Aug-2017.pdf (all internet references were accessed in September 2021).

4 Biersteker, Thomas J., Eckert, Sue E. and Tourinho, Marcos, Targeted Sanctions: The Impacts and Effectiveness of United Nations Action, Cambridge University Press, New York, 2016CrossRefGoogle Scholar.

5 David Cortright and George A. Lopez, The Sanctions Decade: Assessing UN Strategies in the 1990s, Lynne Rienner, Boulder, CO, 2000.

6 For example, the new measures targeted vessels transporting illicit oil rather than banning the import of oil in general, and banned the export of rough diamonds rather than a country's diamond trade. For more on this moment of change, see T. J. Biersteker, S. E. Eckert and M. Tourinho, above note 4.

7 James Cockayne, Rebecca Brubaker and Nadeshda Jayakody, Fairly Clear Risks: Protecting UN Sanctions’ Legitimacy and Effectiveness through Fair and Clear Procedures, research report, United Nations University Centre for Policy Research (UNU-CPR), 2018.

8 UNSC Res. 1904, 17 December 2009. The Council also adopted reforms on the processes for listing individuals. States cannot put a name forward for listing until the name has been independently verified by three separate sources. Groups of experts also have to rely on three independent sources in their reports before putting a name forward. Reforms have made it harder to be listed.

9 For the purposes of this paper, the terms “humanitarian sector”, “humanitarian organizations” and “humanitarian actors” are used interchangeably and are meant to include all non-governmental organizations, civil society actors and UN agencies operating in an impartial manner and engaging in exclusively humanitarian activities.

10 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 Security Council decisions through their own courts and only implement what they feel is legally sound.

11 In the case of challenges regarding due process safeguards, reforms were more modest and related principally to the CT sanctions regime.

12 For the impacts of CT measures in general, see, notably, Emma O'Leary, Principles under Pressure: The Impact of Counterterrorism Measures and Preventing/Countering Violent Extremism on Principled Humanitarian Action, Norwegian Refugee Council, June 2018; Tom Keatinge, Uncharitable Behavior and Banks that Drop Nonprofit Customers, Demos, 2019; Ben Hayes, The Impact of International Counterterrorism on Civil Society Organisations: Understanding the Role of the Financial Action Task Force, Bread for the World, 2017; Tom Keatinge and Florence Keen, Humanitarian Action and Non-State Armed Groups: The Impact of Banking Restrictions on UK NGOs, research paper, Chatham House, April 2017; Stuart Gordon, Alice Robinson, Harry Goulding and Rawaad Mahyub, The Impact of Bank De-risking on the Humanitarian Response to the Syrian Crisis, Humanitarian Policy Group (HPG), August 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, HPG, August 2018, p. 2; Kate Mackintosh and Patrick Duplat, Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action, Norwegian Refugee Council, 2013; Sherine El Taraboulsi-McCarthy and Camilla Cimatti, Counter-Terrorism, De-risking and the Humanitarian Response in Yemen: A Call for Action, HPG, February 2018. On CT sanctions in particular, see, notably, Alice Debarre, Making Sanctions Smarter: Safeguarding Humanitarian Action, policy report, International Peace Institute, December 2019; High Level Review of United Nations Sanctions, Compendium, November 2015; Emanuela-Chiara Gillard, Recommendations for Reducing Tensions in the Interplay between Sanctions, Counterterrorism Measures and Humanitarian Action, research paper, Chatham House, August 2017.

13 Note that IHL is applicable only in relation to situations of armed conflict. Only some, not all, CT sanctions are applied in relation to such situations.

14 Neutrality is not a required condition under IHL, but it is considered a fundamental operational principle for humanitarian action. A perceived lack of impartiality and neutrality might endanger the safety and security of humanitarian workers when operating in sensitive conflict contexts and when engaging with non-State armed groups considered to be “terrorists”.

15 See, for example, Emanuela-Chiara Gillard, Humanitarian Action and Non-State Armed Groups: The International Legal Framework, research paper, Chatham House, February 2017; Modirzadeh, Naz K., Lewis, Dustin A. and Bruderlein, Claude, “Humanitarian Engagement under Counter-Terrorism: A Conflict of Norms and the Emerging Policy Landscape”, International Review of the Red Cross, Vol. 93, No. 883, 2011CrossRefGoogle Scholar.

16 Said language notably condemns the obstruction and misappropriation of humanitarian assistance; condemns the targeting of and attacks against humanitarian personnel; recalls the corresponding obligations to ensure full, safe and unhindered humanitarian access to all those in need; and recalls the importance of respecting the humanitarian principles of humanity, impartiality, neutrality and independence.

17 South Sudan, Mali, Yemen, CAR, DRC, Libya.

18 South Sudan, Mali, Yemen, CAR, DRC, Libya, Somalia, Sudan.

19 Thomas J. Biersteker, Rebecca Brubaker and David Lanz, UN Sanctions and Mediation: Establishing Evidence to Inform Practice, UNU-CPR, 18 February 2019.

20 Note that there are no UN sanctions regimes applicable to Syria as a country; however, the UN sanctions measures on ISIL and Al-Qaeda are applicable to the region.

21 Thomas J. Biersteker, Larissa van den Herik and Rebecca Brubaker, Enhancing Due Process in UN Security Council Targeted Sanctions Regimes, internal report drafted for Switzerland's International Law Directorate, April 2021, p. 10 (pending publication, on record with the authors).

22 Ibid., p. 8.

23 J. Cockayne, R. Brubaker, and N. Jayakody, above note 7, p. 4; see also Table 8 and pp. 30–35.

24 T. J. Biersteker, L. van den Herik and R. Brubaker, above note 21, p.8

25 Ibid.

26 Note that Taliban sanctions regime (1988) makes similar references to the risk of humanitarian aid being diverted and used as a source of financing.

27 See, for example, FATF, Best Practices: Combating the Abuse of Non-Profit Organizations (Recommendation 8), June 2015.

28 This notably includes the obligation of States to criminalize in their domestic orders violations of sanctions measures (in particular the assets freeze measure) applicable in the ISIL/Al-Qaeda regime. Obligations arising from UN Security Council resolutions on counterterrorism adopted under Chapter VII, such as Resolution 1373 and later Resolution 2462, are very similar to conventional obligations of the International Convention for the Suppression of the Financing of Terrorism. After the adoption of Resolution 1373, scholars notably wrote about the Security Council acting as a supranational legislator for the rest of the UN member States. See, for example, Talmon, Stefan, “The Security Council as World Legislature”, American Journal of International Law, Vol. 99, No. 1, 2005CrossRefGoogle Scholar; Szasz, Paul C., “The Security Council Starts Legislating”, American Journal of International Law, Vol. 96, No. 4, 2002CrossRefGoogle Scholar.

29 However, this might not be true when looking beyond UN sanctions.

30 Based on author telephone interviews with a broad range of international and national humanitarian actors in the DRC, Somalia, Yemen and Mali, November 2020–May 2021 (transcripts on record with the authors).

31 Note that former regimes, such as the one applicable in Yugoslavia, mentioned the need to allow access to camps, prisons and detention centres (for the International Committee of the Red Cross and other relevant international humanitarian organizations), which belongs to the realm of protection activities.

32 UNSC Res. 2582, 29 June 2021, op. para. 4.

33 Ibid., Preamble.

34 Rebecca Brubaker, Nine Points on Designing UN Sanctions to Better Protect Humanitarian Activities, remarks given at the High-Level Retreat on IHL, UN Sanctions and Counterterrorism, Greentree Estate, New York, March 2020, available at: https://i.unu.edu/media/cpr.unu.edu/post/3989/SanctionsBriefing-July2020.pdf .

35 Thomas J. Biersteker, Sue E. Eckert, Peter Romaniuk, Aaron Halegua and Natalie Reid, Targeted Financial Sanctions: A Manual for Design and Implementation, Contributions from the Interlaken Process, Watson Institute at Brown University, 2001.

36 For example, the term “exemption” used at the UN sanctions level is inversed with the term “exceptions” in the EU forum. This confusion is reproduced in the academic sector as well.

37 This has been a criticism repeated several times at different workshops and conferences bringing together sanctions experts and government practitioners. There are also increased requests from governments for “hard data” evidencing the direct impacts of sanctions measures on humanitarian action.

38 Based on author interviews.

39 Consultations under Chatham House, 2019–20.

40 This study is being produced by the Harvard Law School Program on International Law and Armed Conflict's Counterterrorism and Humanitarian Engagement Project.

41 For example, most designations in the Iraq regime date from the period immediately following the post-2003 US-led invasion and focus on former Baathists who no longer play a significant role in the conflict. As another example, in Sudan, only four individuals have been listed since 2005.

42 See for example, Laurie Nathan, Adam Day, João Honwana and Rebecca Brubaker, Capturing UN Preventive Diplomacy Success: How and Why Does It Work?, UNU-CPR, May 2018.