Toolkit for principled humanitarian action
2. Sanctions, counterterrorism measures and principled humanitarian action
This section develops your knowledge of the nature of sanctions and counterterrorism measures. By the end of it, you will be able to understand:
- The similarities and differences between sanctions and other counterterrorism measures.
- Their origins, the types of restriction they impose relevant to humanitarian actors and the safeguards that exist to protect humanitarian action
- Which sanctions and other counterterrorism measures should your organisation consider
The importance of understanding the difference between sanctions and counterterrorism measures
Sanctions and counterterrorism measures are two different instruments. Both can have similar impacts on principled humanitarian action, but understanding the differences helps organisations to identify and assess the risks involved, design balanced risk management processes, avoid overcompliance and unnecessary self-censorship, and engage in more precise advocacy for necessary changes.
Sanctions and counterterrorism measures may, for example, share the same objectives, such as stemming the flow of financing for terrorism, in which case some of the restrictions they impose can also be similar. Financial sanctions prohibit making funds or economic resources available, directly or indirectly, to designated organisations or individuals. This can have the same effect as counterterrorism measures that prohibit the financing of terrorist activities and/or assistance to proscribed terrorist groups.
There are, however, important differences in terms of their origin, their goals, their targets, the nature of their prohibitions, the risks they pose to humanitarian work, and the types of safeguards – if any - that protect humanitarian action.
First, not all sanctions are related to counterterrorism. Sanctions can also form part of efforts to prevent violations of international law, punish repression, restore democratically-elected leaders, and/or promote human rights, compliance with IHL and disarmament.
Second, sanctions and counterterrorism measures also impose different types of restrictions. Sanctions may restrict the import or purchase of certain goods and commodities, such as fuel, while counterterrorism measures may include criminal laws that forbid a wider range of activities, such as travelling to receive terrorist training, travelling to locations under the control of designated groups, and incitement of terrorism. Counterterrorism measures may also include local curfews, bans on the use of certain vehicles, bans on certain economic activities and/or the imposition of military or no-go zones.
Finally, some of the impacts of sanctions and counterterrorism measures on humanitarian operations may be similar, but the risks associated with them differ. Sanctions implementation tends to be overseen by specific bodies – such as the Office of Foreign Assets Control (OFAC) in the US, or the Office of Financial Sanctions Implementation (OFSI) in the UK – and violations mostly result in administrative penalties, such as fines which can be significant. Counterterrorism laws are enforced by prosecuting authorities, and non-compliance could lead to criminal liability.
What are sanctions?
Sanctions are foreign policy measures that may be adopted internationally by the UN Security Council (UNSC), or by regional organisations such as the EU or the Economic Community of West African States (ECOWAS) and/or individual countries. They are intended to influence the behaviour of other countries, groups or individuals without recourse to armed force.
States or bodies adopt sanctions for a variety of purposes. “Geographical” sanctions usually form part of efforts to respond to unfolding crises in countries such as Niger, Sudan, Syria or Ukraine. Others pursue “thematic” objectives such as protecting human rights, preventing the proliferation of weapons of mass destruction, or countering terrorism. These thematic sanctions are sometimes referred to as “horizontal” sanctions. The motivation for their imposition may vary, but their impact on humanitarian action and the risks they pose are often similar.
Who imposes sanctions?
At the international level, the UNSC, acting under chapter VII of the UN Charter, adopts sanctions that are binding on all member states, which must incorporate them into national law and enforce them.
At the regional level, the EU for example implements UN sanctions but can also adopt its own autonomous sanctions, which it calls “restrictive measures”. These are directly binding on its 27 member states and any person or entity under their jurisdiction. Member states are responsible for the enforcement of sanctions and can issue relevant authorisations to allow certain transactions.
At the national level, individual countries – such as the US, the UK but many others too - adopt autonomous sanctions, which have become significantly more numerous than UN sanctions in recent years. Host countries where humanitarian organisations operate may also adopt and enforce their own sanctions. Ethiopia, Mali and Sudan have adopted autonomous sanction lists for counterterrorism purposes since 2021, for example.
There are several sanctions regimes intended to counter the financing of terrorism, adopted by the UN, regional bodies and individual countries:
The UN’s main counterterrorism sanctions fall under the regime that targets individuals and groups associated with al-Qaeda and the Islamic State (IS) group. Sometimes referred to as the “1267 regime”, the designated groups include Jama'a Nusrat ul-Islam wa al-Muslimin, operating in the Sahel; IS West Africa Province; and IS in Iraq and the Levant – Khorasan, which operates in Afghanistan. Other geographical UN sanctions can incorporate counterterrorism objectives, such as those targeting the Taliban in Afghanistan and al-Shabaab in Somalia.
Regional organisations such as the EU and countries such as the UK and US implement independent sanctions with counterterrorism aims. There is no global list of groups and individuals designated under counterterrorism sanctions and designations vary between countries. The US maintains a list of ‘Specially Designated Global Terrorists’ that includes Ansar Allah, also known as the Houthi movement, and Hamas, among others. The EU’s global list of terrorist individuals and groups includes various Palestinian groups, Hezbollah’s military wing, the Kurdistan Workers Party and the Liberation Tigers of Tamil Eelam.
How do sanctions work?
States impose sanctions as part of efforts to bring about changes in behaviour or policies. Measures may include:
- Embargoes on the provision of weapons or equipment that might be used for internal repression
- Restrictions on the export of other goods
- Travel bans
- Financial sanctions that freeze funds and assets and prohibit making them available directly or indirectly to designated individuals or entities
In terms of the risk they pose to principled humanitarian action, financial sanctions and bans on the import or export of certain goods such as fuel or IT equipment are the most problematic.
Financial sanctions only apply to the people or entities whose behaviour or policies they are intended to change. These are referred to as “listed”, “designated” or “targeted” people or groups and typically include ministries, ministers or other high-ranking officials, companies, non-state armed groups (NSAGs) or their leaders which may also act as de facto authorities, as well as other entities or individuals who support the behaviour or policies the sanctions are trying to modify.
Once adopted by governments, sanctions become part of national law. This means their obligations must be respected by every entity - individuals, organisations, companies- that fall under the jurisdiction of the State or organisation that imposes them. This includes humanitarian organisations and staff. Sanctions jurisdictions frequently overlap, which creates a complex legal environment that can be challenging to navigate. (See Tool 1).
‘Targeted’ vs. ‘comprehensive’ sanctions
While in the 1990s the UN imposed extensive sanctions targeting whole countries and their economies, UN sanctions – but also others, such as the EU - have since become more targeted, focusing primarily on individuals, such as leaders of NSAGs or specific entities. “Targeted” or “smart” sanctions are intended to only affect leadership figures whose behaviour they aim to change. Experience has, however, shown they can have far reaching effects for both civilians and humanitarian organisations that seeks to assist them.
‘Comprehensive sanctions’ is a term often used to describe US sanctions on Cuba, Syria, Iran or North Korea for example, where bans apply to most economic activity including financial transactions, exports, and imports, with entire countries or regions. Colloquially, the term is also often used when referring to broad and cumulative sectoral sanctions that prohibit trade for certain sectors. When applied broadly to sectors that underpin a country’s economy, such sanctions may have an indiscriminate effect on the civilian population.
‘Primary’ vs. ‘secondary’ sanctions
Most sanctions are ‘primary’ sanctions, meaning they are only applicable to entities under the jurisdiction of states that adopt them. However, some countries, particularly the US, have introduced “secondary sanctions” that create legal liability for entities that do not otherwise fall under their jurisdiction. In the case of the US, these effectively compel individuals and entities in third countries to conform with its sanctions or risk exclusion from US financial markets.
How do sanctions adversely impact humanitarian assistance?
Sanctions can affect principled humanitarian action in a number of ways. Financial sanctions tend to have the greatest impact on humanitarian organisations.
Humanitarian organisations often operate in countries or areas where sanctioned individuals or entities have de facto control over people in need – as in Myanmar and Syria – or may own companies and service providers or monopolise an economic sector. To be able to deliver aid, organisations may have to make payments such as taxes to sanctioned entities or pay for services or goods from companies designated under financial sanctions.
Sanctions on ministries, institutions, ministers or de facto authorities also complicate humanitarian organisations’ collaboration with these entities. Unless explicit humanitarian safeguards are in place in the law, organisations may fall foul of sanctions if they transfer financial or material resources to these designated individuals or ministries, whether directly or indirectly. Sanctions do not, however, prevent other forms of engagement with designated parties, including de facto authorities, such as signing memorandums of understanding or negotiating humanitarian access (See Deep Dive 1).
Sanctions can also impose restrictions on the type of goods or materials that can be exported to a country, which can include items that humanitarian organisations require for their programmes, be they in agriculture, health or water, sanitation and hygiene (WASH). They may also prevent humanitarian staff using software they need for their daily operations.
Banks and financial institutions are often the most concerned about sanctions violations because they potentially face heavy fines and other penalties. This leads them to take an extremely risk-averse approach to providing financial services that might involve a country, group or individual designated under sanctions. This risk aversion is referred to as bank derisking, and it can have a significant effect on humanitarian organisations and their operations (See Deep Dive 2).
A telecommunications company in Syria was designated under sanctions adopted by the EU and several other countries. Over time, however, the company became the only reliable telecommunications provider in parts of Syria where an international humanitarian organisation operated, meaning that by 2021 the organisation had to rely on a sanctioned entity to provide internet access for its staff and ensure the safe and efficient delivery of assistance.
EU sanctions at the time allowed organisations to apply for authorisation to use sanctioned suppliers – referred to as a ‘derogation’. One humanitarian organisation applied to several ‘national competent authorities’ from relevant European states, asking for permission to contract with the company concerned, explaining the services’ necessity for its humanitarian programmes and that in the circumstances it had no other option. The application process was complex and time-consuming. Authorisations ultimately took several months to obtain, in some instances up to a year, far too long to be useful in an emergency response situation.
After the earthquakes that struck north-west Syria in 2023, the EU introduced a humanitarian exemption to its sanctions on the country which authorises humanitarian payments to designated individuals or entities without having to seek prior permission. At the time of writing this toolkit, the exemption is valid until 1 June 2025.
How can humanitarian action be protected from the effects of sanctions?
Sanctions do not prohibit humanitarian action, but the restrictions they impose can prohibit certain activities or transactions necessary for humanitarian operations. This means that humanitarian organisations do not need an exemption or an explicit authorisation to work in any sanctioned environment. However humanitarian exemptions are important because they allow organisations to contract services from a designated company and to reassure risk-averse banks to conduct transfers to contexts under sanctions or authorise payments to designated entities, including NSAGs and de facto authorities when needed for humanitarian operations.
Thanks to a decade of sustained advocacy by humanitarian organisations which highlighted the challenges that sanctions pose to their work and principles, states and international organisations are increasingly including a range of safeguards to protect principled humanitarian action. The types of safeguards vary across the different sanction regimes.
What are humanitarian safeguards?
“Safeguards” or “carve-outs” are generic terms for provisions that exclude humanitarian organisations and their staff from restrictions in sanctions regimes. Humanitarian safeguards carve out a space for principled humanitarian action, allowing humanitarian activities to be conducted by legitimate humanitarian organisations without the risk of violating sanctions.
Safeguards take two main forms. The first, known as an “exemption”, excludes transactions or goods necessary for humanitarian action from the prohibitions altogether. This is the most protective model, as adopted under UN Security Council resolution (UNSCR) 2664 of 2022 and increasingly replicated since by several key countries.
The other approach requires humanitarian organisations to apply for authorisation in advance of carrying out a relevant transaction. The EU refers to such authorisations as “derogations”, the US as “specific licenses” and the UK as “Treasury licences”. The process of applying for authorisation varies. Under EU sanctions, applications are made to relevant member states, a procedure that humanitarian organisations have long criticised as lengthy, cumbersome and unsuitable for emergency responses. Some EU member states have also admitted challenges in navigating the complexity of the bloc’s regulations. In a positive development, the EU has gradually moved away from the derogation system since 2023 and toward humanitarian exemptions.
For examples of humanitarian carve-outs in sanctions, counterterrorism and donor clauses, see Tool 3. For a checklist of good practices for protective humanitarian carve-outs, see Tool 4.
UN Security Council resolution 2664
The most significant development in UN financial sanctions was the adoption of the landmark UNSCR 2664 in December 2022. It represented a major policy shift on humanitarian exemptions that has far-reaching implications for efforts to protect principled humanitarian action.
What does UNSCR 2664 do?
The resolution introduces a standing humanitarian exemption in all existing UN financial sanctions regimes. It also applies to all future UN sanction regimes unless the UNSC expressly decides otherwise. There is only one exception. UNSCR 2664 does not cover the sanctions imposed on members of the Taliban in Afghanistan, because there is a separate exemption, UNSCR 2615, that applies.
Which types of sanction does UNSCR 2664 apply to?
The exemption only applies to financial sanctions adopted by the UNSC. It does not cover other types of restriction in UN sanctions that may affect humanitarian action, such as import bans on certain commodities. Nor does it automatically apply to autonomous sanctions adopted by regional organisations such as the EU or countries such the UK or US, though it does set an important precedent and model. It does not cover counterterrorism measures that pose challenges for principled humanitarian action, such as the US material support statute.
Which activities does UNSCR 2664 cover?
The exemption allows specific categories of organisations to provide funds or assets directly or indirectly to designated individuals or entities if they are necessary to ensure the timely delivery of humanitarian assistance or support other activities that address basic human needs.
Which categories of organisations are covered?
The exemption applies to:
- The UN, “including its programmes, funds and other entities and bodies, as well as its specialized agencies and related organizations”
- Humanitarian organisations that have observer status with the UN General Assembly and members of those organisations
- Bilaterally or multilaterally funded NGOs working on UN humanitarian response plans, refugee response plans and other UN appeals, or participating in the cluster system overseen by the UN Office for the Coordination of Humanitarian Affairs (OCHA)
- The “employees, grantees, subsidiaries, or implementing partners of the above-mentioned actors, while and to the extent that they are acting in those capacities”.
How long will the exemption last?
The exemption has no time limit, except as it applies to the “1267” sanctions regime on al-Qaeda and the IS group. This part of the exemption is valid for only two years, expiring in December 2024, after which the UNSC will decide whether to extend it and for how long.
How should states give effect to the resolution?
The exemption in UNSCR 2664 is immediately binding on UN member states. Most countries and the EU have given effect to UNSCR 2664’s provisions in their national laws that govern the implementation of UN sanctions. In addition, many countries have gone a step further and included similar safeguards in their own ‘autonomous’ financial sanctions.
What is the reporting requirement in UNSCR 2664?
The resolution requires the Emergency Relief Coordinator (ERC) to brief the relevant UN sanctions committees every 12 months on behalf of the humanitarian community. It requests information on the following topics:
- “The delivery of humanitarian assistance and other activities that support basic human needs (…)
- Any available information regarding the provision, processing or payment of funds, other financial assets or economic resources to, or for the benefit of, designated individuals or entities, any diversion of funds or economic resources by the same
- Risk management and due diligence processes in place
- Any obstacles to the provision of such assistance or to the implementation of the resolution”
To support the annual ERC briefings, which are oral and confidential, OCHA collects information from humanitarian organisations. No written submissions or report are published on the content of the briefings. Unlike UN agencies, NGOs have no legal obligation to report, but they are encouraged to provide information to ensure ongoing support for the resolution from UNSC member states.
What are ‘incidental benefits’, and how do they differ from aid diversion?
As part of the UNSCR 2664 reporting requirement, the ERC is requested to provide information on funds and/or resources provided to designated individuals or entities. These are known as ‘incidental benefits’ and might include the payment of taxes to a designated group, or the use of a supplier owned by a designated individual for humanitarian activities. UNSCR 2664 permits such transactions if the individual or entity is on a UN sanctions list and if they are essential to humanitarian action or meeting people’s basic needs. These payments may, however, still be forbidden under other autonomous sanctions that do not have a similar exemption, or under the counterterrorism legislation of a host or donor country.
The ERC is also required to report on incidents of aid diversion, which is a distinct and separate issue from incidental benefits. It refers to instances when assistance does not reach the intended recipients as a result of interference, fraud, theft or damage by a government, local authority, armed group, or any other actors. Aid diversion can occur regardless and independent of humanitarian exemptions in sanctions regimes, which do not legitimise or authorise it or make it lawful.
2010: UNSCR 1916: After drought in Somalia, UNSC adopts a humanitarian exemption in its financial sanctions on the country. It is the first humanitarian exemption of its kind.
2016: EU member states adopt a humanitarian exemption to authorise humanitarian organisations they fund to purchase Syrian fuel.
2021: UNSCR 2615: UNSC adopts a humanitarian exemption in UN sanctions that apply to members of the Taliban, to facilitate aid delivery in Afghanistan.
2022: UNSCR 2664: UNSC adopts a cross-cutting humanitarian exemption applicable to all past and future UN financial sanctions. The US adopts a series of general licenses shortly afterwards that give effect to and extend the exemption to most US sanctions programs.
2023: Most sanctioning entities adopt temporary humanitarian exemptions in their autonomous sanctions on Syria, prompted by the February earthquakes in the country.
2024: The EU adopts humanitarian exemptions in almost all its financial sanctions, and the US includes general licenses in its Yemen sanctions.
Where to find guidance in relation to sanctions?
Recognising that it is difficult for organisations to understand the restrictions and safeguards, some sanctioning entities have started to issue guidance for all those involved in humanitarian responses, including donors and private sector entities. Because rules and interpretations differ, this guidance applies to specific jurisdictions. There is no globally harmonised guidance available. For a sample of relevant country guidance, see the Resource section.
Counterterrorism measures are intended to prevent and suppress terrorist activities, including the commissioning of specific acts such as hostage taking, and support for terrorist organisations or individuals.
What are counterterrorism measures?
What is terrorism?
There is no universally agreed definition of terrorism, but the UNSC describes it in UNSCR 1566 of 2004 as “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organisation to do or to abstain from doing any act”.
Who are ‘terrorist’ organisations?
Countries take different approaches to defining terrorism based on their legal systems. Some, such as Australia, the UK and the US, have issued lists of proscribed terrorist groups. These are different to those compiled for the purpose of sanctions (designated persons or designated entities), and the groups listed can be but are not necessarily the same.
Other countries such as Burkina Faso, France and Switzerland, do not have lists of proscribed groups. Rather, for the purpose of terrorist offences, it is up to judges to determine the “terrorist” nature of an organisation.
There are two different categories of terrorist designation in the US. These can illustrate the differences and implications of counterterrorism designations.
US designation as Specially Designated Global Terrorists (SDGT) is aimed at cutting sources of finances for a designated individual or a group. It can be used to designate not just terrorist groups but also those who provide support or finance to them or are ‘associated’ with them. It would be a breach of the sanction regulations related to this designation for US persons to provide financial support to the designated entity. Banks and financial institutions must also freeze any assets that the entity has in the US.
Foreign Terrorist Organizations’ (FTO) is a separate designation that triggers different legal implications, including the application of the US material support statute (see below). This means that those who are found to be providing ‘material support’ to FTO can be convicted of a crime if it is proven that they knew they were assisting a terrorist organisation.
In the US, a terrorist group can be designated under either or both designations – all FTOs are also designated as SDGT, but many SDGT entities have not been designated as FTO. For example, the Houthis in Yemen were listed both as a FTO and as SDGT until February 2021, when the Biden administration revoked both designations on humanitarian grounds. In February 2024, the US re-designated the Houthis as SDGTs amidst the group’s attacks on shipping in the Red Sea. The humanitarian community has consistently raised alarm over the serious risk of civilian harm of a further FTO designation, as it would effectively criminalise certain transactions necessary to facilitate life-saving humanitarian aid and exacerbate the chilling effect on commercial imports, remittances, and financial services.
Which measures are commonly used to combat terrorism?
Counterterrorism measures often take the form of laws that criminalise a range of activities which financially, materially or morally support terrorism. Some offences, such as the financing of terrorism, derive directly from international law, while individual countries define others independently.
Countries may also adopt military, policy or administrative measures intended to counter terrorism. A growing number resort to measures such as preventive detention, curfews, territorial bans and movement restrictions. Some are codified in laws, but others are far less transparent and so are more complex to identify and track. The absence of an internationally recognised definition of terrorism allows countries very broad scope, including the ability to factor in their own political, security and military objectives.
Many countries have adopted anti-money laundering (AML) and counterterrorism financing (CTF) frameworks. These measures impose obligations on financial institutions and other businesses, such as customer due diligence and the reporting of suspicious transactions. In some Sahel countries, non-profit organisations fall into the category of entities subject to more stringent AML/CTF measures.
Who adopts counterterrorism measures?
Counterterrorism measures can be adopted at the international level and/or via domestic laws. Donors also often incorporate counterterrorism clauses in the grant agreements they sign with their partners, which in some cases go beyond the requirements laid out in legislation.
International level
The UN has taken centre stage in the adoption of global counterterrorism measures since 2001. It has done so through a series of conventions and UNSC resolutions that require UN member states to adopt laws and measures to prevent and suppress the financing of terrorist acts, and other forms of support for terrorism, such as the financing of foreign fighters and the glorification of terrorist acts. The resolutions are binding on all member states, which must bring them into their ’domestic’ (national) legal systems.
Examples of obligations related to the financing of terrorism include:
- UNSCR 1373 of 2001 requires UN member states to prohibit “their nationals or any persons and entities within their territories from making funds and assets available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in terrorist acts”.
- UNSCR 2462 of 2019 requires member states to “ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense 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”.
Regional level
Some regional organisations have adopted specific measures to combat terrorism, including its financing, with a view to harmonising criminal and administrative frameworks among their member states. The measures may be binding for member states of the relevant organisation. Some are directly applicable while others require transposition into national law. The EU’s Directive 2017/54 on combating terrorism, for example, provides a common definition of terrorism offences and requires member states to adapt their domestic frameworks accordingly.
Other regional organisations have adopted common counterterrorism frameworks, especially in criminal law. The African Union adopted the African Model Anti-terrorism Law of 2011, which serves as a guide for the implementation of international obligations in domestic law. The West African Economic and Monetary Union (also known by its French acronym UEMOA) adopted a directive and model law on the financing of terrorism in 2015.
Domestic level
Countries take different approaches to giving effect to international or regional obligations in their domestic laws. Most have adopted specific counterterrorism legislation which is enforced by judicial institutions, while others adopted additional and broad counterterrorism legislation or policies, examples of which are discussed below.
In the aftermath of the September 2001 attacks, the US adopted legislation that criminalised the provision of “material support” for proscribed terrorist groups. The material support statute uses an extremely broad definition that includes the provision of any property or service, lodging, training, expert advice or assistance, personnel and transport, but not medicine or religious materials.
This has for long created obstacles to legitimate humanitarian activities that fall within the scope of such a wide definition. The statute can be applied to organisations and individuals regardless of where an alleged crime had been committed, the nationality of the perpetrator or the source of the funds involved. For details about how the US material support statute has been used in strategic litigation against humanitarian organisations.
Countries have taken different approaches to criminalising travel in relation to terrorist activities. Some have adopted extremely broad prohibitions that go beyond what is required by the UNSC. The UK, for example, passed a law in 2019 that makes it an offence for UK nationals and residents to enter or remain in a designated country or part of a country. It was designed to make it easier to prosecute “foreign fighters” who travelled abroad to fight with groups designated as terrorist and then returned to the UK had returned to the UK.
As initially tabled the law did not include an exemption for humanitarian workers who may need to enter such areas. This exposed staff engaged in legitimate activities to the risk of arrest and criminal charges on their return to the UK. Such an outcome could have had a major impact on their organisation, given the resources, cost and possible reputational damage involved. It could also have meant that people in need in designated areas would be deprived of assistance.
After lobbying by humanitarian organisations, the law was adopted with an exemption that allows travel to designated areas for “providing aid of a humanitarian nature”. Shortly after the UK law was adopted, the Dutch government tabled a similar bill, which also includes an exemption for humanitarian organisations and journalists for the offence related to presence in areas controlled by terrorist groups.
How do counterterrorism measures impede principled humanitarian action?
Counterterrorism measures can pose similar challenges to humanitarian action as sanctions, but with additional impacts. Groups proscribed under counterterrorism measures are often parties to conflicts and may have control over civilian populations in severe need. These include al-Qaeda in the Arab Peninsula in Yemen, IS group affiliates in Syria and the Sahel region, Boko Haram in Nigeria and Hamas in the Gaza Strip.
Sanctions prohibit making financial resources or other assets available to listed entities and individuals, but counterterrorism measures may also prohibit other forms of support and often have vague language that can be interpreted extremely broadly. There is a risk of humanitarian activities or organisations falling within the scope of the restrictions.
Many host governments in countries where NGOs operate have adopted counterterrorism measures in laws, policies and practices which span criminal, military, policing and administrative frameworks. Examples include preventive detention, curfews, other movement restrictions and market closures. Bans on trade and cash transfers may also be imposed. These measures tend to compound the vulnerabilities caused by existing conflicts and have a significant negative impact on civilian populations as well as on principled humanitarian action.
Autonomous terrorist listings
A growing number of host countries have adopted their own terrorist listings in recent years, sometimes invoking the provisions of UNSCR 1373. Such practices may impede principled humanitarian action when adopted by countries affected by major crises, such as in the case of Israel’s listing of Palestinian entities, as well as in Ethiopia or Sudan.
Under IHL humanitarian organisations can engage with all parties to a conflict, including designated groups, but it is common that they limit their contact for fear of threats, prosecution and host countries accusing them of supporting terrorists. This may mean that people living in areas controlled by designated groups only have limited access to assistance, undermining the humanitarian principle of impartiality. It may also mean that parties to a conflict view organisations as legitimate targets, as was the case when IS’s official global weekly online magazine ran a series of articles in mid-2020 accusing aid workers of aiding the Nigerian government in its fight against the Islamic State of West Africa Province (ISWAP), creating major risks to the safety of staff and the communities they work with.
Shrinking humanitarian space
Several host countries have adopted “NGO laws”, which sometimes invoke national security concerns to restrict or control the activities of humanitarian organisations by using CTF and AML measures that involve burdensome registration requirements and limitations on foreign funding. Such laws may also empower governments to approve projects and oversee the selection of suppliers and beneficiaries.
Measures that affect civilians’ access to basic goods and services
Some domestic counterterrorism measures have restricted peoples’ access to basic services and livelihoods, heightening their vulnerabilities. Movement restrictions and bans on trade, fishing and farming enforced in the fight against Boko Haram around the Lake Chad basin have had a dire impact on local livelihoods and worsened food insecurity already aggravated by years of conflict.
Extra legal barriers in Iraq means that individuals with close family members suspected of affiliation with the IS group have been unable to acquire civil documentation for themselves or their relatives, effectively denying them basic rights such as freedom of movement, education or healthcare.
Measures that affect principled humanitarian action
Domestic counterterrorism measures can hinder the delivery of essential aid by imposing numerous constraints on access, logistics, operations, programmes and the mobility of humanitarian personnel. Local restrictions typically seek to regulate the ways organisations work, the type of assistance they can provide and even to whom they can provide it. This undermines the humanitarian principles and operational independence, and diverts limited resources to compliance with administrative, security or bureaucratic requirements.
Local authorities in some regions of the Sahel, for example, imposed bans on cash assistance and items they deemed “dual use”, such as fuel or fertiliser. Other measures involve humanitarian organisations having to obtain permission in advance to travel to certain areas. Counterterrorism laws, policies and practices have also led to the de facto and, in some cases, deliberate neglect of populations in need, especially those who reside in areas controlled by armed or designated terrorist groups or who are suspected to support them, undermining the humanitarian principles of neutrality and impartiality in the response.
Intimidation, harassment and investigation of humanitarian personnel
In many settings, authorities and sometimes local people become increasingly suspicious that humanitarian assistance is benefitting NSAGs, whether deliberately or not. Humanitarian organisations risk suspension or expulsion over allegations of supporting designated groups. Staff members, especially local personnel, are increasingly subject to intimidation, arrest, questioning and at times detention.
How can humanitarian action be protected?
As with sanctions, the challenges that counterterrorism measures pose to humanitarian action can be mitigated by including safeguards in the instruments and laws. These have only been introduced for counterterrorism measures in recent years, however, and there are far fewer than for sanctions.
Humanitarian safeguards in international counterterrorism law
UNSCR 2642 adopted in 2019 demands that member states ensure all measures taken to counter terrorism comply with their obligations under international law, including IHL, international human rights law and refugee law.
It also urges them “when designing and applying measures to counter the financing of terrorism, to take into account the potential effect of those measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law”. The exact scope of these obligations is unclear, especially for the requirement to “take into account” the potential effects of counterterrorism measures, and many countries have not yet given effect to it.
Humanitarian safeguards in domestic counterterrorism laws
Some countries and regional organisations have adopted safeguards for humanitarian action in their counterterrorism measures in recent years. One way of doing so is by excluding certain activities from the scope of application of specific criminal offences. More protective, but less frequent, are humanitarian safeguards that have a broad scope and apply to the law in its entirety, as in Chad.
In some countries, humanitarian assistance is not specifically covered by a humanitarian exception in the relevant criminal law, but judicial authorities have issued guidance for judges and prosecutors to protect humanitarian activities and personnel. Internal guidance from the UK’s Crown Prosecution Service in 2022, for example, states that “counterterrorism legislation is not intended to hinder humanitarian, development or peacebuilding”.
Humanitarian safeguards in domestic counterterrorism legislation can have different forms and scope:
Safeguards applicable to an offence of financing of terrorism: Ethiopia’s Anti-Terrorism Act states that “a humanitarian aid given by organizations engaged in humanitarian activities or a support made by a person who has legal duty to support other is not punishable for the support made only to undertake function and duty”. Canada Criminal Code also provides that terrorist financing offences ”do not apply to a person who carries out any of the acts (…) for the sole purpose of carrying out humanitarian assistance activities conducted under the auspices of impartial humanitarian organizations in accordance with international law while using reasonable efforts to minimize any benefit to terrorist groups”.
Safeguards applicable to an offence of “association” with terrorist organisations: Australia’s Criminal Code stipulates that such an offence ‘’does not apply if the association is only for the purpose of providing aid of a humanitarian nature”.
Safeguard applicable to a counterterrorism legislation as a whole: Chad’s 2020 law on the repression of terrorist acts includes a general clause that safeguards IHL, and another that excludes humanitarian activities from all crimes under the law. It specifies: "The exclusively humanitarian and impartial activities conducted by neutral and impartial humanitarian organizations are excluded from the scope of application of this law."
Safeguard applicable to a terrorist designation: A US bill proposed to designate the Wagner Group as a foreign terrorist organisation includes a clause in the “material support” provision that excludes “activities and support directly related to humanitarian assistance or peacebuilding activities”. The bill had not become law as of 2024, but it establishes a good precedent for protecting humanitarian activities from the US material support statute.
For more examples of humanitarian safeguards in counterterrorism measures, see Tool 3.
Which sanctions and counterterrorism measures should my organisation consider?
Humanitarian organisations and their staff should consider with sanctions and counterterrorism measures adopted by several countries and regional organisations.
Some are directly applicable, including those adopted by:
- The country where the organisation is registered.
- The country or countries where it operates.
Additionally:
- Staff must comply with sanctions and counterterrorism measures adopted by their country of nationality. These do not, however, apply to their organisation as a whole.
- US sanctions apply to all transactions conducted in the formal banking system in US dollars. This is because use of US financial system creates a so-called ‘US nexus’ - it creates a link to the US which brings a transaction within the scope of US primary sanctions. A US nexus can be created in some other situations, depending on the sanctions program, for example, if an entity has a parent company in the US. Organisations should take advice from US lawyers.
UN sanctions are adopted through UNSC resolutions that are binding on UN member states. Each country is required to adapt its legislation to comply with the resolutions.
Importantly, all sanctions and counterterrorism measures adopted by a country or any international or regional body of which it is a member are applicable. A Spanish organisation operating in Myanmar, for example, is bound to comply with all Spanish and EU sanctions – including sanctions related to other contexts or issues (e.g. Iran or human rights) - and not only those imposed on Myanmar.
Sanctions and counterterrorism measures adopted by other countries may become applicable indirectly through grant agreements. Most donors require recipients of their funds to comply with those they have adopted or are subject to, even if the organisation concerned is not under the jurisdiction of the donor country.
In such cases, compliance with the measures is required as a contractual obligation. Failure to do comply is a violation of the contract, but unless the measures are directly applicable it does not constitute a violation of the sanctions or counterterrorism measures themselves.
NRC, as a Norwegian organisation, is primarily bound by Norwegian law, including Norway’s sanctions legislation, which gives force to UN and most EU sanctions. When NRC runs programmes in the Democratic Republic of Congo (DRC), it is also bound by the laws of the country. If NRC’s projects in the DRC are funded by the UK’s Foreign, Commonwealth & Development Office (FCDO), the organisation is also bound to abide by all UK financial sanctions by virtue of the grant agreements it signed with the FCDO.
