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International humanitarian law, principled humanitarian action, counterterrorism and sanctions: Some perspectives on selected issues

Published online by Cambridge University Press:  03 February 2022

Tristan Ferraro
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Abstract

In recent years, the international community has worked to confront the large and growing threat of terrorism, including by introducing new counterterrorism (CT) measures and tightening existing ones. These measures take many forms, including international, regional and domestic sanctions against individuals, groups and other entities. Such efforts pursue the legitimate aims of security and international peace – things that terrorism undermines and goes against – but they have, at the same time, implicated a degree of overlap and confusion between international humanitarian law (IHL), on the one hand, and the law and policy framework underwriting CT measures and sanctions regimes, on the other, particularly as both apply to and affect principled humanitarian action. This article addresses this area of overlap and confusion. First, it examines the applicability of IHL to CT measures and operations. Next, it addresses the co-application of IHL, CT regulations and sanctions regimes, from the mindset of preserving IHL without impeding CT measures and their objectives. The article then examines the legal questions that arise when sanctions regimes and CT measures affect IHL-mandated and IHL-protected activities undertaken by impartial humanitarian organizations. Finally, the article analyzes recent developments and makes proposals aimed at preserving an effective humanitarian space in contexts where IHL, CT legal frameworks and sanctions apply simultaneously.

Keywords

counterterrorismsanctionsinternational humanitarian lawIHL applicabilityclassification of armed conflictco-applicationIHL exclusion clauseimpartial humanitarian organizationhumanitarian exemption
Type
Relationship between counterterrorism law and IHL
Information
International Review of the Red Cross , Volume 103 , Issue 916-917: Counterterrorism, sanctions and war , April 2021 , pp. 109 - 155
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the ICRC

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Footnotes

*

This article does not necessarily reflect the views of the ICRC.

References

1 This part only addresses selected recent legal issues in relation to the fight against terrorism. This section also focuses on situations of non-international armed conflict (NIAC) as they constitute the prevalent context involving non-State armed groups designated as terrorist.

2 See, for instance, UK Supreme Court (UKSC), Regina v. Mohammed Gul, 2013 UKSC 64, 25 October 2013, paras 48–49 (affirming England and Wales Court of Appeal, Regina v. Mohammed Gul, 2012). For more details see, Kimberley N. Trapp, “The Interaction of the International Terrorism Suppression regime and IHL in Domestic Criminal Prosecutions: The UK Experience”, in Derek Jinks, Jackson N. Maogoto and Solon Solomon (eds), Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies, TMC Asser Press, The Hague, 2014.

3 See, for instance, US Department of Defense (DoD), Law of War Manual, 2015, para. 3.3.1.1.

4 See Bartels, Rogier, “When Do Terrorist Organizations Qualify as ‘Parties to an Armed Conflict’ under IHL?”, Military Law and Law of War Review, Vol. 56, No. 2, 2018Google Scholar. See also recent court cases in Belgium deciding that non-State armed groups such as ISIS and Jahbat Al-Nusra do not qualify as parties to an armed conflict for the purposes of IHL: for instance, Court of Appeal of Antwerp, The Prosecutor v. FB et al. (Sharia4Belgium), Judgment No. C/101/2016, 27 January 2016, pp. 53–54. For an analysis on these cases, see Vaios Koutroulis, “How Have the Belgian Courts Dealt with the Interplay between IHL and Counter-Terrorism Offences?”, in Stéphane Kolanowski (ed.), Proceedings of the Bruges Colloquium: Terrorism, Counter-Terrorism and International Humanitarian Law, No. 47, College of Europe and ICRC, 2017.

5 See for instance, Claire Landais, “Legal Challenges in Fighting Armed Groups Extraterritorially”, in S. Kolanowski (ed.), above note 4. See also Israel High Court of Justice, Public Committee against Torture v. Israel, HCJ 769/02, 14 December 2006, para. 21; UK Ministry of Defence (MoD), The Joint Service Manual of the Law of Armed Conflict, UK JSP 383, 2004, para. 1.33.4.

6 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 33rd International Conference of the Red Cross and Red Crescent, Geneva, 2019 (2019 Challenges Report), pp. 61–62.

7 Marco Sassòli, “Legal Qualification of the Fight against Terrorism”, in S. Kolanowski (ed.), above note 4, p. 55.

8 International Criminal Tribunal for the former Yugoslavia (ICTY), The Prosecutor v. Boškoski, Case No. IT-04-82-T, Judgment (Trial Chamber II), 10 July 2008, para. 174; International Criminal Tribunal for Rwanda, The Prosecutor v. Rutaganda, Case No. ICTR-96–3-T, Judgment (Trial Chamber I), 6 December 1999, para. 92; International Criminal Court (ICC), The Prosecutor v. Thomas Lubanga Dyilo, Judgment (Trial Chamber), 14 March 2012, paras 533 ff.; ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Art. 61 (7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor (Pre-Trial Chamber), 15 June 2009, paras 220 ff.

9 Australian Defence Force, Law of Armed Conflict, Executive Series, ADDP 06.4, 11 May 2006, para. 3.5; MoD, above note 5, para. 3.3.1.

10 Kolb, Robert and Hyde, Richard, An Introduction to the International Law of Armed Conflicts, Hart, Oxford, 2008, pp. 75–76Google Scholar; Corn, Geoffrey S. et al. , The Law of Armed Conflict: An Operational Approach, Wolters Kluwer Law & Business, New York, 2012, pp. 72Google Scholar, 80; International Law Association, Committee on the Use of Force, Final Report on the Meaning of Armed Conflict in International Law, 74th Conference of the International Law Association, The Hague, 2010, pp. 4, 28–33.

11 2019 Challenges Report, above note 6, pp. 58–59; DoD, above note 3, para. 17.1.1.6.

12 However, the possibility that the fight against terrorism will trigger a situation of IAC cannot be discarded. Indeed, theoretically, a non-State armed group designated as terrorist could operate under the overall control of a State, making it a subsidiary organ of that State and therefore turning an initial NIAC into an IAC. See Pictet, Jean (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 1: Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952Google Scholar (1952 Commentary on GC I), common Art. 2, paras 265–273; for the application of this approach to the fight against terrorism, see M. Sassòli, above note 7, p. 49. One could also envisage a situation in which a non-State armed group designated as terrorist becomes itself a party to an IAC – for instance, if the group in question becomes the effective government of a State or if it is effectively fighting against colonial domination, alien occupation or racist regimes in the exercise of its right of self-determination provided in Article 1(4) of Additional Protocol I (AP I). See R. Bartels, above note 4. An IAC can also be triggered by the military operations conducted by a State or a coalition of States against a non-State armed group designated as terrorist in the territory of another State without the latter's consent. In such case, it is the ICRC's view that an IAC erupts between the intervening State(s) and the territorial State alongside the NIAC existing between the former and the non-State armed group. See 1952 Commentary on GC I, above, common Art. 2, paras 261–263; Vaios Koutroulis, “The Fight against Islamic State and Jus in Bello”, Leiden Journal of International Law, Vol. 29, No. 3, 2016, pp. 836–841.

13 ICTY, The Prosecutor v. Duško Tadić, Case No. IT-94-1, Judgment (Trial Chamber II), 7 May 1997, para. 562;

ICTY, The Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-T, 3 April 2008, paras 49, 60. See also 1952 Commentary on GC I, above note 12, common Art. 3, paras 421–437, for a detailed analysis of the legal conditions for determining the existence of a NIAC. See also Ben Saul, “Terrorism and IHL”, in Ben Saul (ed.), Research Handbook on International Law and Terrorism, Edward Elgar, Cheltenham, 2020, pp. 210–211.

14 It is important to underline that for the purposes of determining whether a non-State armed group designated as terrorist is sufficiently organized for the purposes of IHL, the group is not required to meet the same level of organization as that of a State's armed forces. International tribunals have stated that a rather limited command structure would suffice, provided the non-State party to the NIAC is able to carry out coordinated military operations against the enemy using military means and methods of warfare (ICTY, The Prosecutor v. Haradinaj et al., Judgment (Trial Chamber), 2008, para. 89). The various factors identified in the tribunals’ jurisprudence in order to assess the organization criterion are only indicative and need not all be met.

15 See ICTY, Tadić, above note 13 (emphasis added).

16 ICTY, Boškoski, above note 8, paras 187, 190.

17 Ibid., para. 187.

18 B. Saul, above note 13.

19 See Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled “Human Rights Council”: Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S-2/1, UN Doc. A/HRC/3/2, 23 November 2006, para. 62, stating that the fact that Israel considered Hezbollah to be a terrorist organization and its fighters terrorists did not influence the classification of the armed conflict between Israel and Hezbollah.

20 1952 Commentary on GC I, above note 12, common Art. 3, paras 447–450. See also ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 31st International Conference of the Red Cross and Red Crescent, ICRC, Geneva, 2011 (2011 Challenges Report), p. 11; ICTY, The Prosecutor v. Limaj, Judgment (Trial Chamber), 2005, para. 170; Germany, Federal Prosecutor General at the Federal Court of Justice, Fuel Tankers Case, Decision to Terminate Proceedings, 2010, p. 33.

21 2019 Challenges Report, above note 6, pp. 51–52: “When several organized armed groups display a form of coordination and cooperation, it might be more realistic to examine the intensity criterion collectively by considering the sum of the military actions carried out by all of them fighting together.”

22 Ibid.; Jelena Nikolic, Thomas de Saint Maurice and Tristan Ferraro, “Aggregated Intensity: Classifying Coalitions of Non-State Armed Groups”, Humanitarian Law and Policy Blog, 7 October 2020, available at: https://blogs.icrc.org/law-and-policy/2020/10/07/aggregated-intensity-classifying-coalitions-non-state-armed-groups/ (all internet references were accessed in December 2021). On an approach of classification based on aggregation, see also Jann K. Kleffner, “The Legal Fog of an Illusion: Three Reflections on ‘Organization’ and ‘Intensity’ as Criteria for the Temporal Scope of the Law of Non-International Armed Conflict”, International Law Studies, Vol. 95, 2019, pp. 172–177; Chiara Redaelli, “A Common Enemy: Aggregating Intensity in Non-International Armed Conflicts”, Humanitarian Law and Policy Blog, 22 April 2021, available at: https://blogs.icrc.org/law-and-policy/2021/04/22/common-enemy/.

23 For more details on the support-based approach, see ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 32nd International Conference of the Red Cross Red Crescent, Geneva, 2015 (2015 Challenges Report), pp. 21–23; Tristan Ferraro, “The Applicability and Application of IHL to Multinational Forces”, International Review of the Red Cross, Vol. 95, No. 891–892, 2013, pp. 583–587; Tristan Ferraro, “Military Support to Belligerents: Can the Provider Become a Party to the Armed Conflict?”, in Stéphane Kolanowski (ed.), Proceedings of Bruges Colloquium: Legal and Operational Challenges Raised by Contemporary Non-International Armed Conflicts, No. 49, College of Europe and ICRC, 2019. For views challenging the ICRC support-based approach, see Marten Zwanenburg, “Double Trouble: The ‘Cumulative Approach’ and the ‘Support-Based Approach’ in the Relationship between Non-State Armed Groups”, Yearbook of International Humanitarian Law, Vol. 22, 2019; Terry D. Gill, “Some Thoughts on the ICRC Support Based Approach”, Questions of International Law, 31 May 2019, available at: www.qil-qdi.org/some-thoughts-on-the-icrc-support-based-approach/.

24 M. Sassòli, above note 7, p. 54.

25 Ibid., p. 48.

26 DoD, above note 3, para. 3.3.1.1.

27 For details on the differences between IHL and the CT legal framework, see 2011 Challenges Report, above note 20, pp. 48–49; Jelena Pejic, “Armed Conflict and Terrorism: There Is a (Big) Difference”, in Ana María Salinas de Frías, Katja L. H. Samuel and Nigel D. White (eds), Counter-Terrorism: International Law and Practice, Oxford University Press, Oxford, 2012, pp. 172–174.

28 Marco Sassòli, “Terrorism and War”, Journal of International Criminal Justice, Vol. 4, No. 5, 2006, pp. 967–971.

29 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950), Art. 33.

30 Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP II), Art. 4.

31 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 51(2); AP II, Art. 13(2).

32 See Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rule 2, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1.

33 For more specific details on the war crime of intending to spread terror amongst a civilian population, see Ben Saul, “Terrorism, Counter-Terrorism and IHL”, in Dapo Akande and Ben Saul (eds.) The Oxford Guide to International Humanitarian Law, Oxford University Press, Oxford, 2020, pp. 405–409.

34 At the Diplomatic Conference of 1974–77, a proposal to introduce prisoner of war status into the law of NIACs was similarly rejected (Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977), Vol. 5, Federal Political Department, Berne, 1978, p. 91). See also Sandesh Sivakumaran, “Lessons for the Law of Armed Conflict from Commitments of Armed Groups: Identification of Legitimate Targets and Prisoners of War”, International Review of the Red Cross, Vol. 93, No. 882, 2011, p. 477; DoD, above note 3, para. 17.4.1.1; MoD, above note 5, para. 15.6.5.

35 In addition to IHL violations/crimes, domestic common criminal law can also apply to certain terrorist acts in NIAC. More particularly in NIAC, the penal laws of the State party to the conflict continue to apply and members of the non-State party could be still prosecuted under various counts such as rebellion, treason, treachery, sedition or other national security-related offences according to the applicable domestic laws.

36 B. Saul, above note 33, p. 410.

37 See AP II, Art. 6(5); ICRC Customary Law Study, above note 32, Rule 159.

38 There are nineteen so-called “sectoral” CT conventions which have been adopted since 1963. These oblige States Parties to criminalize specific acts of transnational violence committed by persons and groups (including those designated as terrorist), to establish jurisdiction over the offences, to investigate, and to arrest and prosecute or extradite perpetrators. For a detailed analysis of these conventions in light of IHL, see Ben Saul, Defining Terrorism in International Law, Oxford University Press, Oxford, 2008.

39 Regional measures include the Organisation of African Unity (OAU) Convention on the Prevention and Combating of Terrorism of 1997, the Organisation of the Islamic Conference Convention on Combating International Terrorism of 1999, the Shanghai Cooperation Organization Convention on Combating Terrorism, Separatism and Extremism, the Council of Europe Convention on the Prevention of Terrorism of 2005, and the EU Directive on Combating Terrorism of 2017. For an analysis of the CT instruments adopted in Asia, see Ben Saul, “Counter-Terrorism Law and Armed Conflict in Asia”, in Suzannah Linton, Tim McCormack and Sandesh Sivakumaran (eds), Asia-Pacific Perspectives on International Humanitarian Law, Cambridge University Press, Cambridge, 2020.

40 This Security Council practice of imposing binding CT obligations on States, rather than leaving them to negotiate treaties amongst themselves, has been significantly criticized by some. See Fionnuala Ní Aoláin, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, UN Doc. A/73/45453, 3 September 2018, paras 8–18; Stefan Talmon, “The Security Council as World Legislature”, American Journal of International Law, Vol. 99, No. 1, 2005; Luis Miguel Hinojosa Martínez, “The Legislative Role of the Security Council in Its Fight against Terrorism: Legal, Political and Practical Limits”, International and Comparative Law Quarterly, Vol. 57, No. 2, 2008; Matthew Happold, “Security Council Resolution 1373 and the Constitution of the United Nations”, Leiden Journal of International Law, Vol. 16, No. 3, 2003.

41 UNSC Res. 2178, 24 September 2014, para. 6.

42 UNSC Res. 2462, 28 March 2019.

43 For an analysis of how to address these conflicts of norms, see above.

44 UNSC Res. 1566, 8 October 2004, provides a “working definition” of terrorist acts which can guide member States, although they are not required to follow it. That definition confines terrorist offences to criminal acts, including acts against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, which are already offences under CT conventions and are committed to provoke a state of terror in the public, a group of persons or particular persons in order to intimidate a population or to compel a government or international organization.

45 See also Fionnuala Ní Aoláin, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, UN Doc. A/75/337, 3 September 2020, para. 24, available at: https://undocs.org/pdf?symbol=en/A/75/337: “most references to the [IHL] legal regime are generic and lack the specificity required to ensure their observance”.

46 While this request was initially included in preambular paragraphs of resolutions (see, for instance, UNSC Res. 1535, 26 March 2004, preambular para. 4; UNSC Res. 1566, 8 October 2004, preambular para. 6; UNSC Res. 1624, 14 September 2005, preambular para. 2), the Security Council went one step further by incorporating it into operative paragraphs of CT-related resolutions (UNSC Res. 2170 15 August 2014, op. para. 8; UNSC Res. 2178, 24 September 2014, op. paras 2, 3, 5, 11; UNSC Res. 2396, 21 December 2017, op. paras 3, 4, 7, 8).

47 For a contrary view, see David McKeever, “IHL and Counter-Terrorism: Fundamental Values, Conflicting Obligations”, International and Comparative Law Quarterly, Vol. 99, No. 1, 2020, pp. 71–73. In any case, the invocation of Article 103 of the UN Charter would not necessarily solve the question of potential clashes between IHL and CT legal frameworks, taking into account the unsettled scope of application of the provision – notably as to whether it includes customary law. See Johann Ruben Leiæ and Andreas Paulus, “Article 103”, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus and Nikolai Wessendorf (eds), The Charter of the United Nations: A Commentary, Vol. 2, 3rd ed., Oxford University Press, Oxford, 2012, paras 66 ff. Article 103 cannot be invoked in relation to IHL rules of a jus cogens nature: see Alexander Orakhelashvili, “The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions”, European Journal of International Law, Vol. 16, No. 1, 2005.

48 In his article for this issue of the Review, Ben Saul argues that “[t]he better view is that States must implement [CT law] obligations in conformity with IHL, which the Council increasingly appears to recognize as the lex specialis – and not vice versa”.

49 See, for instance, Canada, Criminal Code, RSC 1985, c C-46, 1985, Section 83.01 (“Terrorist activity … does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict”); New Zealand, Terrorism Suppression Act, 2002, Section 5.4 (“[A]n act does not fall within subsection (2) [defining a terrorist act] if it occurs in a situation of armed conflict and is, at the time and in the place that it occurs, in accordance with rules of international law applicable to the conflict”); Belgium, Code Pénal, Art. 141bis (“Le présent titre [relative aux infractions terroristes] ne s'applique pas aux activités des forces armées en période de conflit armé, tel que définis et régis par le droit international humanitaire, ni aux activités menées par les forces armées d'un État dans l'exercice de leurs fonctions officielles, pourvu qu'elles soient régies par d'autres règles de droit international”); Chad, Loi 03/PR/2020 portant repression des actes de terrrorisme en République du Tchad, 2020, Art. 1(3) (“Aucune disposition de la présente loi ne peut être interprétée comme dérogatoire au droit international humanitaire et au droit international des droits de l'homme”); Switzerland, Code Pénal, Art. 260quinquies sur le financement du terrorisme (“L'al. 1 ne s'applique pas si le financement est destiné à soutenir des actes qui ne sont pas en contradiction avec les règles du droit international applicable en cas de conflit armé”); EU, Directive (EU) 2017/541 on Combating Terrorism, 2017, Recital 37 (“This Directive does not govern the activities of armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of those terms under that law, and, inasmuch as they are governed by other rules of international law, activities of the military forces of a State in the exercise of their official duties”).

50 The choice to apply CT offences may be explained by the misapprehension according to which IHL would lead to the impunity of the offenders, by the imperative of judicial effectiveness (CT offences, notably ancillary offences, being considered as easier to prove from a criminal law standpoint) or by policy choices aimed at activating the stigmatization and delegitimization attached to the terrorist label.

51 For more details on these counts, see the article by Ben Saul in this issue of the Review.

52 EU Court of Justice, LTTE v. Council of the EU, Case Nos T-208/11, T-508/11, Judgment of the General Court (6th Chamber, Extended Composition), 16 October 2014, para. 56.

53 See UKSC, Gul, above note 2, paras 52 ff. For a detailed analysis of the decision, see K. N. Trapp, above note 2.

54 Council of State, Bogotá, G.O. Plazas c. Ministerio de Defensa Nacional-Ejército Nacional, 29 April 2015. In this decision the court ruled that in light of the existence of a NIAC in Colombia, the lower courts erred in qualifying as terrorist the conduct of non-State party to the conflict directed at military objectives. It also held that under IHL non-State armed groups can act lawfully, notably when they harm the State's military assets; that attaching a terrorist label to those involved in the armed conflict makes it more complicated to demand compliance with IHL; and that the sporadic commission of specific acts of terrorism as defined under IHL by FARC members does not change the nature of the whole group from belligerent to terrorist group.

55 Court of Naples, Repubblica Italiana contro TJ e altri, 23 June 2011.

56 For a detailed analysis of the various forms taken by the relationships between IHL and CT international instruments, see the article by Ben Saul in this issue of the Review; B. Saul, above note 33, pp. 410–416; J. Pejic, above note 27, pp. 186–193.

57 Emanuela-Chiara Gillard, IHL and the Humanitarian Impact of Counter-Terrorism Measures and Sanctions: Unintended Ill Effects of Well-Intended Measures, Research Report, Chatham House, September 2021, p. 9.

58 See, for instance, UN International Convention for the Suppression of Terrorist Bombings, 1997, Art. 19(1): “Nothing in this Convention shall affect other rights, obligations and responsibilities of States and individuals under international law, in particular the purposes and principles of the Charter of the United Nations and international humanitarian law”; OAU Convention of on the Suppression and Combating of Terrorism, 1999, Art. 22(1): “Nothing is this Convention shall be interpreted as derogating from the general principles of international law, in particular the principles of international humanitarian law”; Directive (EU) 2017/541 on Combating Terrorism, 2017, Recital 37: “This Directive should not have the effect of altering the rights, obligations and responsibilities of the Member States under international law, including under international humanitarian law”.

59 See the article by Ben Saul in this issue of the Review.

60 The existing sectoral CT treaties have generally taken a cautious approach to regulating acts in armed conflict covered by IHL. One treaty, the 1979 UN Hostages Convention, does not apply at all to the war crime of hostage-taking under IHL. Other treaties exclude attacks on certain military targets (such as military aircraft or ships, or combatants), thus only applying to attacks on civilians or civilian objects during armed conflict (thereby regulating such acts alongside existing IHL prohibitions and war crimes). Some treaties exclude acts committed by armed forces, deferring to IHL as the lex specialis. For a detailed analysis of the various IHL exclusion clauses, see the articles by Ben Saul and by Thomas Von Poecke, Frank Verbruggen and Ward Yperman in this issue of the Review. For an Asian perspective on these clauses, see B. Saul, above note 39.

61 For a contrary view arguing that the incorporation of IHL exclusion clauses into domestic law is only optional, see the article by Thomas Von Poecke, Frank Verbruggen and Ward Yperman, in this issue of the Review. However, this approach appears directly at odds with Article 26 of the 1969 Vienna Convention on the Law of Treaties, on the basis of which it can be argued that IHL exclusion clauses must be applied so as to ensure the preservation of the integrity of IHL, which is the “raison d’être” of these provisions. States are therefore only required to criminalize, and transnationally cooperate, in relation to the enumerated conduct that is not covered by the exclusionary provisions. National offences that go further would be at odds with the IHL exclusion clauses binding the State authorities and, in any case, would not enjoy the benefits of transnational cooperation (including extradition and mutual assistance) under the treaties.

62 UKSC, Gul, above note 2.

63 District Court of The Hague, Prosecutor v. Maher H, 1 December 2014; District Court of The Hague, Prosecutor v. Imane B et al., 10 December 2015; Court of Appeal of The Hague, Prosecutor v. Maher H, 7 July 2016.

64 Court of First Instance of Antwerp, The Public Prosecutor v. FB et al. (Sharia4Belgium), File Nos FD35.98.47-12, AN35.F1.1809-12, 11 February 2015; French-Speaking Court of First Instance of Brussels, The Public Prosecutor v. ZK and Others, FD35.97.15-12, FD35.97.5-13, FD35.98.144-15, 29 July 2015; Court of Appeal of Brussels, The Public Prosecutor v. ZK and Others, Case No. 2016/1262, 9 FC 2015, Correctional Affairs (12th Chamber), 14 April 2016.

65 For a detailed analysis of this domestic jurisprudence, see the article by Thomas Von Poecke, Frank Verbruggen and Ward Yperman, in this issue of the Review; K. N. Trapp, above note 2; Hanne Cuyckens and Christophe Paulussen, “The Prosecution of Foreign Fighters in Western Europe: The Difficult Relationship between CT and IHL”, Journal of Conflict and Security Law, Vol. 24, No. 3, 2019; Marten Zwanenburg, “Foreign Terrorist Fighters in Syria: Challenges of the ‘Sending’ State”, International Law Studies, Vol. 92, No. 1, 2016; V. Koutroulis, above note 4.

66 This even led some to envisage an abrogation of the exclusion clause in order to ensure the full applicability of CT legislation and to avoid situations in which persons accused of terrorist acts could invoke the clause in order to preclude their conviction for CT offences. See Tom Ruys and Sebastiaan Van Severen, “Art. 141bis Sw. – Vervolging tussen hamer en aambeeld van terreurbestrijding en internationaal humanitair recht”, Rechtskundig Weekblad, Vol. 82, No. 14, 2018, pp. 539 ff.; District Court of The Hague, Prosecutor v. Imane B et al. (Context Case), Judgment, 10 December 2015, para. 7.42.

67 See, for instance, Court of Naples, TJ, above note 55, pp. 33–34, using a renvoi to IHL in order to interpret CT instrument provisions.

68 See the article by Ben Saul in this issue of the Review; J. Pejic, above note 27, pp. 190–193.

69 ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd ed., Geneva, 2016 (2016 Commentary on GC I), common Art. 3, paras 529–534.

70 United States: A/C.6/52/WG.1/CRP.49, reproduced in UN General Assembly, Measures to Eliminate International Terrorism: Report of the Working Group, UN Doc. A/C.6/52/L.3, 10 October 1997, p. 58; Germany: A/C.6/52/WG.1/CRP.51, reproduced in ibid., p. 58; Korea: A/C.6/52/WG.1/CRP.54, reproduced in ibid., p. 59; Costa Rica: A/C.6/52/WG.1/CRP.55, reproduced in ibid., p. 59; New Zealand: A/C.6/52/WG.1/CRP.56, reproduced in ibid., p. 60.

71 Samuel M. Witten, “The International Convention for the Suppression of Terrorist Bombings”, American Journal of International Law, Vol. 92, No. 4, 1998; Marco Sassòli, “Terrorism and War”, Journal of International Criminal Justice, Vol. 4, No. 5, 2006, p. 977.

72 UKSC, Gul, above note 2, para. 52. For a similar view, see Court of Naples, TJ, above note 55, p. 30.

73 For a detailed analysis of the complementary advantages proposed by CT legislations, see the article by Ben Saul in this issue of the Review.

74 See the quotes from the Canadian Criminal Code and the New Zealand Terrorism Suppression Act at above note 49.

75 ICTY, The Prosecutor v. Galić, Case No. IT-98-29-T, Judgment (Trial Chamber), 5 December 2003, paras 133–135.

76 Marco Sassòli, “Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law”, Journal of International Humanitarian Legal Studies, Vol. 1, No. 1, 2010, p. 27: “in armed conflicts, only acts contrary to IHL should be classified as terrorist acts in international anti-terrorism law”.

77 “Session 1 – Setting the Scene”, in S. Kolanowski (ed.), above note 4, pp. 42–45; “Panel Discussion: State Responses to Foreign Fighters”, in S. Kolanowski (ed.), above note 4, pp. 107–133.

78 2011 Challenges Report, above note 20, p. 50.

79 Granting amnesty for behaviour that complies with IHL has also been identified as a rule of customary IHL. See ICRC Customary Law Study, above note 32, Rule 159.

80 2015 Challenges Report, above note 23, p. 18.

81 For a recent detailed analysis of CT measures taken at the international, regional and domestic levels, see E.-C. Gillard, above note 57, pp. 11–27.

82 2015 Challenges Report, above note 23, p. 20.

83 See Rebecca Brubaker and Sophie Huvé, UN Sanctions and Humanitarian Action, United Nations University, Centre for Policy Research, January 2021, available at http://collections.unu.edu/eserv/UNU:7895/UNSHA_ScopingPaper_FINAL_WEB.pdf.

84 Al-Qaida Sanctions Committee, “Assets Freeze: Explanation of Terms”, 24 February 2015, available at: www.un.org/securitycouncil/sites/www.un.org.securitycouncil/files/eot_assets_freeze_-_english.pdf. In addition, certain sanctions regimes interpret this prohibition in light of the notion of “fungibility”, according to which “support provided to a terrorist group for activities that are not unlawful ‘frees up’ resources that would have been used for such lawful purposes, and allows them to be put to violent ends”. See E.-C. Gillard, above note 57, p. 25.

85 See, for instance, European Commission, Commission Guidance Note on the Provision of Humanitarian Aid to Fight the COVID-19 Pandemic in Certain Environments Subject to EU Restrictive Measures, C(2021) 5944 final, 13 August 2021, response to question 3: “Providing batches of medicine, medical equipment, [and/or] disinfectants to a designated person allows that person to, for instance, sell the goods and obtain funds in exchange. Hence it amounts to making economic resources available to, or for the benefit of, a designated person or entity. This could be the case where medical devices are provided to designated persons or entities active in the charity field or in an area which is de facto controlled by a designated person or entity.” See also the response to question 11, indicating that financing or taking part in the construction of makeshift hospitals, sanitation operations or temporary infrastructures to fight the pandemic would amount to an unlawful provision of economic resources if the designated person or entity draws economic benefit from the humanitarian activity.

86 This would be the case, for instance, for material used in water and habitat projects such as pipes, chemicals and construction materials. Arms embargoes could also render more difficult the implementation of weapons decontamination activities.

87 UNSC Res. 2368, 20 July 2017, paras 2(c), 4.

88 E.-C. Gillard, above note 57, p. 28.

89 See, for instance, Council of the EU, Sanction Guidelines – Update, 5664/18, 4 May 2018, para. 89.

90 See Alice Debarre, Safeguarding Humanitarian Action in Sanctions Regimes, International Peace Institute, June 2019, available at: www.ipinst.org/wp-content/uploads/2019/06/1906_Sanctions-and-Humanitarian-Action.pdf; Norwegian Refugee Council, Principles under Pressure: The Impact of Counter-Terrorism Measures and Preventing/Countering Violent Extremism on Principled Humanitarian Action, 2018, available at: www.nrc.no/resources/reports/principles-under-pressure/; Jessica S. Burniske and Naz K. Modirzadeh, Pilot Empirical Survey Study on the Impact of Counterterrorism Measures on Humanitarian Action, 2017, available at: https://blogs.harvard.edu/pilac/files/2017/03/Pilot-Empirical-Survey-Study-2017.pdf; Kate Mackintosh and Patrick Duplat, Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action, UN Office for the Coordination of Humanitarian Affairs (OCHA) and Norwegian Refugee Council, 2013, available at: www.unocha.org/sites/unocha/files/CounterTerrorism_Study_Full_Report.pdf.

91 2011 Challenges Report, above note 20, pp. 51–53.

92 In any case, for operational reasons, the ICRC would also seek the consent of the non-State party or parties to the NIAC before carrying out its humanitarian activities in areas under their control or where they are active.

93 For more details, see Dapo Akande and Emanuela-Chiara Gillard, Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict, OCHA, 2016. See also Tristan Ferraro, “Relief Schemes and the Delivery of Humanitarian Activities in Situations of Armed Conflict: the ICRC's Perspective”, in Fausto Pocar (ed.), Proceedings of the 40th Sanremo Round Table: The Additional Protocols 40 Years Later: New Conflicts, New Actors, New Perspectives, International Institute of Humanitarian Law, FrancoAngeli, 2018, available at: https://iihl.org/full-list-congresses-international-conferences-round-tables-since-institutes-foundation/the-additional-protocols-40-years-later-new-conflicts-new-actors-.

94 See ICRC Customary Law Study, above note 32, Rule 55. The right of control foreseen under IHL should not be considered as extending beyond the parties to the armed conflict and non-belligerent States on the territory of which humanitarian operations must transit to reach countries in which armed conflict take place. Stakeholders not belonging to these categories cannot claim that restrictions contained in CT and sanctions frameworks fall within the right of control under IHL.

95 ICRC, “Q&A and Lexicon on Humanitarian Access”, June 2014, pp. 11–12, available at: www.icrc.org/en/doc/assets/files/2014/icrc-q-and-a-lexison-on-humanitarian-access-06-2014.pdf.

96 IHL is silent on the consent of third countries in whose territory humanitarian operations must transit. However, this does not mean that impartial humanitarian organizations are exempted from seeking and obtaining their consent. Consent of third States must be sought and obtained as a matter of public international law – but as a matter of IHL, based on the obligation to allow and facilitate humanitarian activities, those States are obliged to give their consent. In addition, it is worth noting that IHL foresees specific rules requiring States to facilitate in every possible way the humanitarian activities carried out by the ICRC as well as those undertaken by National Red Cross or Red Crescent Societies: AP I, Art. 81(1–3).

97 2016 Commentary on GC I, above note 69, common Art. 3, para. 840.

98 Dustin A. Lewis and Naz K. Modirzadeh, Taking into Account the Potential Effects of Counterterrorism Measures on Humanitarian Action: Elements of an Analytical Framework for States Grounded in Respect for International Law, legal briefing, Harvard Law School Program on International Law and Armed Conflict (HLS PILAC), May 2021, p. 32.

99 International Law Commission (ILC), Draft Articles on the Law of Treaties, with Commentaries, in Yearbook of the International Law Commission, Vol. 2, 1966, p. 211: “Some members felt that there would be advantage in also stating that a party must abstain from acts calculated to frustrate the object and purpose of the treaty. The Commission, however, considered that this was clearly implicit in the obligation to perform the treaty in good faith and preferred to state the pacta sunt servanda rule in as simple a form as possible.”

100 Articles 12 and 15 of Geneva Convention I, Articles 12 and 18 of Geneva Convention II, Article 16 of Geneva Convention IV, Articles 10 and 16 of AP I for IACs, and common Article 3 and Articles 7 and 8 of AP II for NIACs. See also ICRC Customary Law Study, above note 32, Rule 110.

101 See below.

102 Dustin A. Lewis, Naz K. Modirzadeh and Gabriella Blum, Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism, legal briefing, HLS PILAC, 2015, pp. v, 110–111.

103 ICRC Customary Law Study, above note 32, Rules 31 and 32 applicable in both IAC and NIAC.

104 Ibid., Rule 31.

105 See, for example, UNSC Res. 1456, 20 January 2003, Annex, para. 6; UNSC Res. 1624, 14 September 2005, op. para. 4; UNSC Res. 2178, 24 September 2014, op. para. 5; UNSC Res. 2309, 22 September 2016, op. para. 2; UNSC Res. 2322, 12 December 2016, op. para. 2; UNSC Res. 2354, 24 May 2017, op. para. 2(e); UNSC Res. 2396, 21 December 2017, op. paras 4, 18, 19, 34, 40; UNSC Res. 2482, 19 July 2019, op. para. 16. See also UNGA Res. 75/291, 30 June 2021, preambular paras 12, 26, op. paras 8, 9, 60, 89, 102, 109. In addition, the Counter-Terrorism Committee Executive Directorate (CTED), the subsidiary organ of the Security Council in charge of CT issues, explores ways to ensure that Security Council resolutions on counterterrorism are implemented in accordance with IHL. In this regard, CTED is implementing a dedicated project aimed at improving understanding of the interaction between CT measures and IHL. In the context of this project, CTED is preparing, in cooperation with OCHA and in consultation with other relevant stakeholders, including the ICRC, a thematic study on the interrelationship between CT frameworks and IHL. CTED has further stepped up its efforts to systematically mainstream IHL, as applicable, into its assessment tools and thematic analysis. CTED's role in the IHL realm has been strongly challenged, however: see Dustin A. Lewis, Naz K. Modirzadeh and Jessica S. Burniske, CTED and IHL: Preliminary Considerations for States, legal briefing, HLS PILAC, March 2020; F. Ní Aoláin, above note 45, paras 27–29.

106 UNSC Res. 2462, 28 March 2019.

107 Ibid., op. para. 5.

108 Ibid., op. para. 6.

109 Ibid., op. para. 24.

110 See also the above section on “Understanding How the CT Legal Framework Addresses Armed Conflicts”.

111 For a detailed analysis of the Security Council Resolution 2462, see D. A. Lewis and N. K. Modirzadeh, above note 98, pp. 18–39.

112 E.-C. Gillard, above note 57, p. 18.

113 Some States, like Australia, already included before 2019 a humanitarian exemption for certain security-related crimes (for instance the crimes of treason, military-style training and associating with terrorist organizations: Criminal Code Act, 1995, Sections 80.1.AA.4, 83.3.4.A and 102.8.4.c respectively), excluding from the scope of the offences “the provision of aid or assistance of a humanitarian nature”. In 2019, Australia included a similar exemption for a new offence, the crime of entering or remaining in declared areas (ibid., Section 119.2.3); the humanitarian exemption is extended to “performing an official duty for the ICRC” (ibid., Section 119.2(3)(e)(ii)). Equivalent legislation was adopted in the UK in 2019 and equally includes a humanitarian exemption for activities whose purposes are “providing aid of a humanitarian nature” (Counter-Terrorism and Border Security Act, 2019, Section 58.B.1.5). In March 2020, Ethiopia passed its new Prevention and Suppression of Terrorism Crimes Proclamation No. 1176/2020, whose Article 9.5 excludes from the offence of “rendering support” directly or indirectly for the commission of a terrorist act or to a terrorist organization “humanitarian aid given by organizations engaged in humanitarian activities or a support made by a person who has [a] legal duty to support other[s]”. In April 2020 Chad adopted a new CT law, Law No. 003/PR/2020, excluding entirely from its scope “activities of an exclusively humanitarian and impartial nature carried out by neutral and impartial humanitarian organizations”. In July 2020, the Philippines adopted a new Anti-Terrorism Act No. 11479 preventing, prohibiting and penalizing terrorism. This law includes in its Section 13 a humanitarian exemption excluding from the offence of material support to terrorists “humanitarian activities undertaken by the ICRC, the Philippines Red Cross and other state-recognized impartial humanitarian partners of organizations in conformity with IHL”. In September 2020, Switzerland amended its Penal Code by including a new crime of providing support to the activities of a criminal and terrorist organization. Article 260ter(2), however, foresees a humanitarian exemption according to which the crime of support “does not apply to humanitarian services provided by an impartial humanitarian organization such as the ICRC, in accordance with common Article 3 to the Geneva Conventions of 12 August 1949”. A detailed analysis of the exemptions inserted into these CT legislations is beyond the scope of this article; for a more comprehensive study, see E.-C. Gillard, above note 57, pp. 21–24.

114 For more details on the constitutive elements of a humanitarian exemption in light of IHL, see below.

115 Understanding humanitarian carve-outs in sanctions first necessitates some understanding of terminology. What the ICRC and other humanitarian organizations request is for States to ensure that humanitarian activities carried out by impartial humanitarian action are excluded from the scope of CT and sanctions legal frameworks. The ICRC uses the expression “humanitarian exemption” in that respect, as do others such as the EU. On its end, the UN Security Council uses the term “exception” to cover the same notion, while the US sanctioning authorities use the phrase “general licenses” (see, for instance, US Office of Foreign Assets Control (OFAC), General License No. 14, “Authorizing Humanitarian Activities in Afghanistan”, 24 September 2021, available at: https://home.treasury.gov/system/files/126/ct_gl14.pdf).

116 UNSC Res. 1333, 19 December 2000, op. paras 11, 12. The prohibition was not renewed when the sanctions were revised by UNSC Res. 1390, 16 January 2002.

117 UNSC Res. 2615, 22 December 2021, op. para 1. With regard to its material scope, this exemption is similar to the one included in the UN sanctions regime applicable to Somalia as it relates to financial sanctions only. However, the activities covered by the exemption are arguably broader: they would also include protection activities (“humanitarian assistance and other activities that support basic human needs in Afghanistan” (emphasis added)). The exemption's personal scope of application is also broader insofar as it encompasses humanitarian assistance “providers” writ large. In addition, the exemption's temporal scope of application is not limited.

118 UNSC Res. 1916, 19 March 2010, op. para. 5.

119 EU Council Decision (CFSP) 2016/2144, 6 December 2016, implemented by Council Regulation (EU) 2016/2137, 6 December 2016, Art. 6(a)(1).

120 The UN sanctions regime applicable to the Democratic People's Republic of Korea also has such a clause: see UNSC Res. 2094, 7 March 2013, op. para. 31.

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

122 On the CAR, UNSC Res. 2588, 29 July 2021, preambular paras 12, 13; on Mali, UNSC Res. 2590, 30 August 2021, preambular paras 9, 10. On this occasion, the “intention” and “IHL” clauses were both included as preambular paragraphs, but this does not mean that the Security Council meant to give lesser effect to these clauses. Their insertion as preambular paragraphs is due to divergences among Security Council members, forcing the penholder to limit the discussions on the operative paragraphs of the resolutions.

123 As in UNSC Res. 2462, 28 March 2019.

124 In addition, the preambular paragraph indicating that the sanctions imposed are not aimed at triggering humanitarian consequences could be used in support of humanitarian safeguards to be inserted while domesticating the UN sanctions regime, as such carve-outs would constitute the most effective means to secure humanitarian activities and therefore to serve the humanitarian interests of the civilian population.

125 Council of the EU, Humanitarian Assistance and International Humanitarian Law – Council Conclusions, 14487/19, 25 November 2019, para. 8; Council of the EU, Council Conclusions on EU External Action on Preventing and Countering Terrorism and Violent Extremism, 8868/20, 16 June 2020, paras 15, 27; Council of the EU, EU Priorities at the United Nations and the 75th United Nations General Assembly – Council Conclusions, 9401/20, 13 July 2020, para. 12. Reference on compliance with international law and on the preservation of humanitarian activities can also be found in EU framework documents on sanctions: see Council of the EU, Basic Principles on the Use of Restrictive Measures (Sanctions), 10198/1/04 REV 1, 2004, para. 6; Council of the EU, Guidelines on Implementation and Evaluation of Restrictive Measures (Sanctions) in the Framework of the EU Common Foreign and Security Policy, 11205/12, 2012, para. 9.

126 Council of the EU, Humanitarian Assistance and IHL, above note 125, para. 8.

127 European Commission, above note 85, p. 7.

128 D. A. Lewis and N. K. Modirzadeh, above note 98, p. 9.

129 For a similar view, see UN Human Rights Special Procedures, Position of the United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism on the Human Rights and Rule of Law Implications of the United Nations Security Council Counter-Terrorism Sanctions Regimes on Individuals and Entities, October 2021, pp. 18–19.

130 See below.

131 See, for instance, Canada, Special Economic Measures (Burma) Regulations, SOR/2007-285, 13 December 2007, Section 18.

132 See the article by Kosuke Onishi in this issue of the Review.

133 For an approach using the same reasoning and requiring States to implement UN sanctions regimes in light of international law and indicting that States have some latitude to implement Security Council resolutions, see European Court of Human Rights (ECtHR), Nada v. Switzerland, Appl. No. 10593/08, Judgment (Grand Chamber), 12 September 2012, paras 171, 175, 180. On the presumption that the Security Council does not intend to impose obligations on States to violate fundamental rights, see ECtHR, Al-Jedda v. The United Kingdom, Appl. No. 27021/08, Judgment (Grand Chamber), 7 July 2011, para. 102.

134 Ruys, Tom, “Sanctions, Retorsions and Countermeasures: Concepts and International Legal Framework”, in van den Herik, Larissa J. (ed.), Research Handbook on UN Sanctions and International Law, Edward Elgar, Northampton, MA, 2017Google Scholar; Alland, Denis, “The Definition of Countermeasures”, in Crawford, James, Pellet, Alain and Olleson, Simon (eds), The Law of International Responsibility, Oxford University Press, Oxford, 2010, pp. 1134–1135Google Scholar; Federica Paddeu, “Countermeasures”, Max Planck Encyclopedia of Public International Law, September 2015.

135 See text and commentary to ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10, 2001 (Draft Articles on States), Arts 22, 49–54. Largely identical rules are set out in ILC, Draft Articles on the Responsibility of International Organizations, UN Doc. A/66/10, 2011 (Draft Articles on International Organizations), Arts 22, 51–57.

136 See Draft Articles on States, above note 135, Art. 50(1)(b–d); Draft Articles on International Organizations, above note 135, Art. 53(b–d).

137 Treaty on the European Union, Official Journal of the European Union, C 326/13, 26 October 2012, Art. 3(5).

138 Ibid., Art. 21.

139 Ibid., Art. 29.

140 See above.

141 See, for instance, Slovakia, Law No. 289, 2016, Section 13(1)(a), which excludes humanitarian aid form the scope of the legislation; Switzerland, Federal Act on the Implementation of International Sanctions, 2002, Art. 2(1); OFAC, above note 115; OFAC, General License No. 15, “Transactions Related to the Exportation or Reexportation of Agricultural Commodities, Medicine, Medical Devices, Replacement Parts and Components, or Software Updates in Afghanistan”, 24 September 2021. Canada seems also to open the door to such an approach with the Special Economic Measures (South Sudan) Regulations, SOR/2014-235, 24 October 2014, Section 4, which excludes for the scope of financial restriction “any transaction to international organizations with diplomatic status, a United Nations agency, the International Red Cross and Red Crescent Movement, or Canadian non-governmental organizations that have entered into a grant or contribution agreement with the Department of Foreign Affairs, Trade and Development”.

142 Insofar as sanctions regimes would already include built-in humanitarian exemptions, based on the fact that these regimes are established in compliance with international law, including IHL.

143 Katie King, Naz K. Modirzadeh and Dustin A. Lewis, Understanding Humanitarian Exemptions: UN Security Council Sanctions and Principled Humanitarian Action, Working Group Briefing Memorandum, HLS PILAC, April 2016, pp. 9, 14.

144 CTED, The Interrelationship between Counter-Terrorism Frameworks and International Humanitarian Law, January 2022, p. 34: “Tailored and well-defined exemptions can enhance the clarity and foreseeability of the domestic legal and policy framework. Such measures would also help address the shortcomings caused by de facto ‘don't ask, don't tell’ approaches and provide much-needed legal certainty for humanitarian actors and their operations.”

145 2016 Commentary on GC I, above note 69, common Art. 3, paras 807–821, and Art. 9, paras 1135–1147.

146 The concept of impartiality is distinct from neutrality. Even though, in reality, neutrality is often essential as an attitude in order to be able to work impartially, IHL does not require organizations wishing to qualify on the basis of this provision to be “neutral”. In other words, neutrality is not a legal precondition to qualify as an impartial humanitarian organization under IHL. In the context of humanitarian activities, “neutrality” refers to the attitude to be adopted towards the parties to the armed conflict. Neutrality is also one of the Movement's Fundamental Principles, described as follows: “In order to continue to enjoy the confidence of all, the Movement may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature.”

147 International Court of Justice, Military and Paramilitary Activities in and against Nicaragua, Merits, Judgment, 1986, para. 242.

148 See also Sphere Project, Sphere Handbook: Humanitarian Charter and Minimum Standards in Humanitarian Response, 3rd ed., 2011, p. 22, which states that humanitarian assistance “must be provided according to the principle of impartiality, which requires that it be provided solely on the basis of need and in proportion to need. This reflects the wider principle of non-discrimination: that no one should be discriminated against on any grounds of status, including age, gender, race, colour, ethnicity, sexual orientation, language, religion, disability, health status, political or other opinion, [or] national or social origin.”

149 See for instance, ICRC, Professional Standards for Protection Work Carried Out by Humanitarian and Human Rights Actors in Armed Conflict and Other Situations of Violence, 2nd ed., Geneva, 2013. These standards, adopted through an ICRC-led consultation process, reflect shared thinking and common agreement among humanitarian and human rights agencies (UN agencies, components of the Movement, and non-governmental organizations).