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Published online by Cambridge University Press: 03 December 2021
While challenges may persist with respect to the relationship between counterterrorism (CT) and humanitarian action, it is at least understood that CT measures must comply with international humanitarian law (IHL). Clarifying the relationship between this body of law and CT measures is one of the modest but important innovations of United Nations (UN) Security Council Resolution 2462. At a minimum, references to IHL in this resolution leave a pathway for States to take measures to preserve impartial humanitarian action from the effects of CT, and at most, they prescribe that States should take such measures. Progress in clarifying the relationship between UN sanctions obligations and IHL obligations appears to be lacking with respect to non-CT-related UN sanctions. As will be discussed in this paper, this leads to questions regarding the application of the so-called “supremacy clause” contained in Article 103 of the UN Charter vis-à-vis IHL obligations.
1 The term “impartial” is a term of art under international humanitarian law (IHL) that triggers specific legal consequences, some of which will be elaborated in this paper. It is used throughout IHL, including in key provisions relating to humanitarian action such as Articles 3 and 9/9/9/10 common to the four Geneva Conventions. According to the International Committee of the Red Cross (ICRC), “impartiality” denotes an “attitude to be adopted vis-à-vis the persons affected by armed conflict” in the planning and implementation of humanitarian activities. Impartiality dictates that the needs of the persons affected by armed conflict are the exclusive criteria in shaping and implementing humanitarian activities. Naturally, and as the ICRC makes clear, any discrimination based on “nationality, race, religious beliefs, class or political opinions or any similar criteria” would disqualify a humanitarian activity from being “impartial”. See, generally, 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 (ICRC Commentary on GC I), paras 794–796, 1160–1164.
2 Jessica S. Burniske and Naz K. Modirzadeh, Pilot Empirical Survey Study on the Impact of Counterterrorism Measures on Humanitarian Action & Comment on Study, Harvard Law School Program on International Law and Armed Conflict, 2017; Norwegian Refugee Council, Principles under Pressure: The Impact of Counterterrorism Measures and Prevention/Countering Violent Extremism on Principled Humanitarian Action, 12 June 2018; ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, 22 November 2019, pp. 59–61.
3 Alice Debarre, Making Sanctions Smarter: Safeguarding Humanitarian Action, International Peace Institute, December 2019; Emanuela-Chiara Gillard, Recommendations for Reducing Tensions in the Interplay Between Sanctions and Counterterrorism Measures and Humanitarian Action, Chatham House, August 2017.
4 Rebecca Brubaker and Sophie Huvé, UN Sanctions and Humanitarian Action: Review of Past Research and Proposals for Future Investigation, United Nations University, Centre for Policy Research, January 2021.
5 It must be noted that this article was written prior to the Taliban's takeover of Afghanistan in August 2021. As a result, the observations in this paper relating to the Afghan context may no longer be applicable by the time this paper is published.
6 For an overview, see United Nations, “The Subsidiary Organs of the United Nations Security Council: 2021 Fact Sheet”, 16 July 2021, available at: www.un.org/securitycouncil/sites/www.un.org.securitycouncil/files/subsidiary_organs_factsheets.pdf (all internet references were accessed in November 2021).
7 See the article by Rebecca Brubaker and Sophie Huvé in this issue of the Review.
8 Recalling that UNSC decisions under Chapter VII are binding on member States. Charter of the United Nations, 1 UNTS XVI, 26 June 1945 (entered into force on 24 October 1945) (UN Charter), Art. 25.
9 Among the many examples of what could be considered a “CT measure”, laws criminalizing support to individuals or entities designated as “terrorists” have raised particular concerns. The ICRC has also brought attention to CT sanctions regimes and the tendency for States to impose cumbersome CT clauses in their funding agreements as examples of CT measures that negatively impact impartial humanitarian action. See ICRC, above note 2, p. 60.
10 UNSC Res. 2462, 28 March 2019, op. paras 5, 6. In Resolution 2462, this is coupled with a relatively weaker paragraph “urging” member States to “take into account” the impact that measures taken to counter the financing of terrorism may have on impartial humanitarian action (op. para. 24). Resolution 2482 expands the requirement to comply with IHL to all CT-related measures, not just measures to counter the financing of terrorism as was the case in Resolution 2462. UNSC Res. 2482, 19 July 2019, op. para. 16.
11 These obligations will be elaborated below in the section entitled “Mitigating Measures and Obligations under IHL”.
12 UN Charter, Art. 103.
13 For one example, see McKeever, David, “International Humanitarian Law and Counter-Terrorism: Fundamental Values, Conflicting Obligations”, Comparative Law Quarterly, Vol. 96, No. 1, 2019, p. 31Google Scholar.
14 Such carve-outs have also been referred to as “sectoral” humanitarian exemptions. See Katie King, Naz K. Modirzadeh and Dustin A. Lewis, Understanding Humanitarian Exemptions: U.N. Security Council Sanctions and Principled Humanitarian Action, Harvard Law School Program on International Law and Armed Conflict, 2016, p. 8.
15 This terminology is explained in more detail below in the section entitled “Existing Mechanisms for Preventing and Mitigating Harm to Impartial Humanitarian Action”.
16 Council of the European Union, Sanctions Guidelines: Update, Brussels, 4 May 2018, para. 46, available at: https://data.consilium.europa.eu/doc/document/ST-5664-2018-INIT/en/pdf.
17 As is elaborated in the following section, asset freezes are the focus of this paper due to the fact that they are likely to pose the greatest impediments to impartial humanitarian action. Moreover, asset freezes are the most relevant for the purposes of this paper because they most closely resemble measures demanded by the UNSC in Resolution 2462 relating to countering the financing of terrorism.
18 See, for example, the United Nations University Centre for Policy Research project on “UN Sanctions and Humanitarian Action”, available at: https://cpr.unu.edu/research/projects/unsha.html#outline.
19 A. Debarre, above note 3.
20 Ibid.; R. Brubaker and S. Huvé, above note 4, p. 5.
21 Of the ten UN sanctions regimes within the scope of this paper, eight include all three sanctions measures. Of the remaining two, the regime applicable to Iraq contains an asset freeze and an arms embargo and the Mali regime contains an asset freeze and a travel ban.
22 R. Brubaker and S. Huvé, above note 4; United Nations, Compendium of the High-Level Review of United Nations Sanctions, UN Doc. S/2015/432, 12 June 2015, p. 47.
23 Ibid., p. 5.
24 Ibid.
25 UNSC Res. 2374, 5 September 2017, op. para. 4.
26 UNSC Res. 2206, 3 March 2015, op. para. 12.
27 UNSC Res. 2255, 22 December 2015, op. para. 1(a).
28 UNSC Res. 1807, 31 March 2008, op. para. 11.
29 UNSC Res. 1844, 20 November 2008, op. para. 3.
30 UNSC Res. 1970, 26 February 2011, op. para. 17.
31 UNSC Res. 1591, 29 March 2005, op. para. 3(e).
32 UNSC Res. 2399, 30 January 2018, op. para. 16.
33 UNSC Res. 2140, 26 February 2014, op. para. 11.
34 The regime applicable to Iraq does not contain this type of asset freeze. See, generally, UNSC Res. 1483, 22 May 2003, op. para. 23(b).
35 For example, the United States has implemented the Somalia asset freeze by, inter alia, prohibiting “[t]he making of any contribution or provision of funds, goods, or services by, to, or for the benefit” of listed individuals or entities. See Somalia Sanctions Regulations, US Code of Federal Regulations, Title 31, Part 551, 1 July 2011, Section 551.201(b)(1). This could potentially overlap with goods and services provided by impartial humanitarian organizations.
36 UNSC Res. 2462, 28 March 2019, op. para. 5.
37 “Combatting Financing of Terrorism Open Debate”, What's in Blue, 27 March 2019, available at: www.securitycouncilreport.org/whatsinblue/2019/03/combatting-financing-of-terrorism-open-debate.php; Nathalie Weizmann, “Painting Within the Lines: The UN's Newest Resolution Criminalizing Financing for Terrorists – Without Imperilling Humanitarian Activities”, Just Security, 29 March 2019, available at: www.justsecurity.org/63442/painting-within-the-lines-the-uns-newest-resolution-criminalizing-financing-for-terrorists-without-imperiling-humanitarian-activities/.
38 Dustin A. Lewis and Naz K. Modirzadeh, Taking into Account the Potential Effects of Counterterrorism Measures on Humanitarian and Medical Activities: Elements of an Analytical Framework for States Grounded in Respect for International Law, Harvard Law School Program on International Law and Armed Conflict, May 2021, pp. 27–28.
39 At the time of writing, Implementation Assistance Notices (IANs), a potential tool for clarifying the scope of such measures, have only been drafted for asset freezes in the Libya sanctions regime (excluding regimes that do not fall within the scope of this paper). The IANs relate to three narrow issues, none of which are relevant to the fundamental question of the scope of the asset freeze obligations mentioned above. One of the IANs deals with the question of whether subsidiaries of listed entities are subject to the asset freeze; the other two deal with the payment of management fees on frozen assets and the payment of interest and other earnings on frozen assets respectively. See UNSC, “Implementation Assistance Notices”, available at: www.un.org/securitycouncil/sanctions/1970/implementation-assistance.
40 UNSC Res. 2462, 28 March 2019, op. para. 5.
41 The Somalia Sanctions Regulations, above note 35, Section 551.701(a)(2), applying the International Emergency Economic Powers Act (United States Code, Title 50, Section 1705), “provides for a maximum civil penalty not to exceed the greater of $311,562 or an amount that is twice the amount of the transaction that is the basis of the violation with respect to which the penalty is imposed”; Section 551.701(a)(3) stipulates that “[a] person who willfully commits, willfully attempts to commit, willfully conspires to commit, or aids or abets in the commission of a violation of any license, order, regulation, or prohibition [under the Somalia Sanctions Regulations] may, upon conviction, be fined not more than $1,000,000, or if a natural person, be imprisoned for not more than 20 years, or both.” Within the EU context, penalties are set by each member State individually, even for UN sanctions implemented through EU regulations and decisions. For an overview, see Francesco Giumelli, “Implementation of Sanctions: European Union”, in Masahiko Asada (ed.), Economic Sanctions in International Law and Practice, Routledge, New York, 2021, p. 125.
42 Germany imposes a term of imprisonment of up to five years for violations of the DRC asset freeze. Violations due to negligence could result in imprisonment of up to three years or fines. See Report of Germany to the Security Council Committee Established Pursuant to Resolution 1533 (2004) concerning the Democratic Republic of the Congo on the Implementation of Measures set Forth in Security Council Resolutions 1857 (2008) and 1896 (2009) and Subsequent Resolutions, UN Doc. S/AC.43/2010/9, 24 September 2010.
43 According to Gillard, at least three parties to armed conflict are listed in country-specific UN sanctions: Somalia, the DRC and the CAR. E.-C. Gillard, above note 3, p. 10.
44 Ibid., p. 6.
45 See, for example, Final Report of the Panel of Experts on Yemen, UN Doc. S/2020/326, 28 April 2020, para. 86 and the table on p. 34, citing an example of assets being appropriated by the Houthis from revenues provided by Save the Children.
46 United Nations, above note 22, p. 48.
47 With regard to the situation in Somalia in and around 2008 and 2010, when Al-Shabaab was listed by the United States and the UN respectively, humanitarian organizations were forced to suspend programmes in Al-Shabaab-controlled areas in order to avoid violating sanctions prior to the current “carve-out” contained in the Somalia sanctions regime. Debarre notes similar effects in Afghanistan in Taliban-controlled areas, prior to the Taliban's takeover in August 2021. Given the lack of clarity as to what is permitted under the applicable sanctions regimes in these contexts, humanitarian responses have been “heavily skewed” towards government-controlled areas. Granted, the factors contributing to this observation cannot be solely attributed to sanctions per se. See A. Debarre, above note 3, pp. 14, 16.
48 United Nations, above note 22, p. 48.
49 A. Debarre, above note 3, pp. 15–16.
50 Ibid.
51 For instance, a designated individual could be exempt from a travel ban to allow life-saving medical assistance in another State or to allow the flow of assets needed to cover basic expenses for foodstuffs and medical treatment. See, for example, UNSC Res. 1596, 3 May 2005, op. para. 16.
52 R. Brubaker and S. Huvé, above note 4, pp. 6–7.
53 See, e.g. for Yemen sanctions, UNSC Res. 2564, 25 February 2021, op. para. 4.
54 The present author borrows this term from R. Brubaker and S. Huvé, above note 4, p. 7.
55 Another example of a mitigating measure that falls in between ad hoc derogations and carve-outs can be found in the United Nations Verification and Inspection Mechanism for Yemen (UNVIM). The Mechanism itself was meant for alleviating the dire humanitarian situation facing Yemen, exacerbated by the enforcement of sanctions under UNSC Resolution 2216. Prior to the creation of UNVIM, ships seeking entry into Yemeni ports had to be inspected by the Saudi Arabia-led coalition as part of the enforcement of an arms embargo, which could delay deliveries of goods, including food, for up to four to six weeks. UNVIM facilitates the flow of commercial cargo into Yemen to mitigate delays that would be caused by the inspections under the prior system. Vessels are required to obtain clearance from UNVIM, but a carve-out is technically included inasmuch as humanitarian organizations are exempt from this requirement. For more details, see the UNVIM website, available at: www.vimye.org/about. For background on UNVIM, see “In Hindsight: The Story of the UN Verification and Inspection Mechanism in Yemen”, Security Council Report, 1 September 2016, available at: www.securitycouncilreport.org/monthly-forecast/2016-09/the_story_of_the_un_verification_and_inspection_mechanism_in_yemen.php.
56 E.-C. Gillard, above note 3, p. 7.
57 Ibid.
58 UNSC Res. 2551, 12 November 2020, op. para. 22.
59 “Letter Dated 13 September 2019 from the Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator addressed to the Chair of the Security Council Committee pursuant to Resolution 751 (1992) concerning Somalia”, UN Doc. S/2019/799, 7 October 2019, paras 41–43.
60 A. Debarre, above note 3, p. 16.
61 E.-C. Gillard, above note 3, p. 9.
62 A. Debarre, above note 3, pp. 7–8.
63 R. Brubaker and S. Huvé, above note 4, p. 7.
64 Ibid.
65 UNSC Res. 2564, 25 February 2021, op. para. 4 (emphasis added).
66 ICRC Commentary on GC I, above note 1, para. 826.
67 Ibid., paras 826, 1124.
68 Ibid., para. 803.
69 See common Article 3(2) and common Article 9/9/9/10. See also Additional Protocol II, Art. 18(1).
70 See Massingham, Eve and Thynne, Kelisiana, “Humanitarian Relief Operations”, in Saul, Ben and Akande, Dapo (eds), The Oxford Guide to International Humanitarian Law, Oxford University Press, Oxford, 2020, p. 329Google Scholar, citing, for example, Geneva Convention IV, Art. 59, and Additional Protocol II, Art. 18(2).
71 ICRC Commentary on GC I, paras 834, 1121.
72 See, for instance, ibid., para. 834: “Thus, any impediment(s) to humanitarian activities must be based on valid reasons, and the Party to the conflict whose consent is sought must assess any offer of services in good faith and in line with its international legal obligations in relation to the humanitarian needs of the persons affected by the non-international armed conflict. Thus, where a Party to a non-international armed conflict is unwilling or unable to address basic humanitarian needs, international law requires it to accept an offer of services from an impartial humanitarian organization. If such humanitarian needs cannot be met otherwise, the refusal of an offer of services would be arbitrary, and therefore in violation of international law” (emphasis added).
73 For more on the “right of control”, see “ICRC Q&A and Lexicon on Humanitarian Access”, International Review of the Red Cross, Vol. 96, No. 893, 2014, p. 373.
74 ICRC Commentary on GC I, para. 839.
75 This issue with ad hoc derogations was highlighted in the Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, UN Doc No. A/75/337, 3 September 2020, para. 35.
76 Directive (EU) 2017/541 of the European Parliament and of the Council on Combating Terrorism and Replacing Council Framework Decision 2002/475/JHA and Amending Council Decision 2005/671/JHA, 15 March 2017, Recital 38; United Kingdom, Counter-Terrorism and Border Security Act 2019 (c. 3), 12 February 2019, Part I, Chap. 1, Section 4 (amending the 2000 Terrorism Act with the inclusion of Section 58(B)); Australian Criminal Code Act 1995, Compilation No. 138, 20 April 2021, Sections 80.1AA, 102.8(4)(c), 119.4(7), 119.5(4).
77 Recalling that the UN Charter, at Article 25, stipulates that “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”.
78 Council of the European Union, above note 16, para. 46.
79 Other articles in this issue of the Review provide a more comprehensive analysis of potentially relevant IHL. See, for example, the article by Tristan Ferraro in this issue of the Review.
80 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rule 55, pp. 193–200, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1.
81 The Manual on the Law of Non-International Armed Conflict states that measures taken by a conflict party in control of an area “should not unduly impede or delay the provision of humanitarian assistance”. International Institute of Humanitarian Law, The Manual on the Law of Non-International Armed Conflict, Sanremo, 2006, p. 61, para. 5.1(4), available at: www.legal-tools.org/doc/ccf497/pdf/.
82 This is evident from the reference to both “Parties to the conflict” and “each High Contracting Party” in Additional Protocol I, Art. 70. See Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987, para. 2829.
83 ICRC Customary Law Study, above note 80, Rule 55.
84 ICRC Commentary on GC I, above note 1, para. 804.
85 ICRC, above note 2, p. 61.
86 Ibid. To be precise, the ICRC stops short of stating that carve-outs are required under IHL, stating instead that they are in the “letter and spirit” of the law. Granted, this is not universally accepted by States within the CT sphere, particularly with respect to the notion that IHL obliges States to posit carve-outs from CT legislation. According to a statement by the US Mission to the UN, “the United States rejects the efforts by some to read language included in paragraph 109 [of UNGA Res. 75/291] to mean that all Member States – including non-parties to the relevant armed conflict – have obligations under international humanitarian law … any time it applies to ensure that counterterrorism legislation does not impede humanitarian aid, even if terrorists benefit from such aid”. United States Mission to the United Nations, “Explanation of Position on the UN General Assembly Global Counter-Terrorism Strategy”, 30 June 2021, available at: https://usun.usmission.gov/explanation-of-position-on-the-un-general-assembly-adoption-of-the-global-counter-terrorism-strategy/.
87 In terms of other measures, the obligation to allow and facilitate could also be interpreted as requiring States to take positive measures to address the aforementioned “chilling effect” impacting humanitarian organizations and their donors. States could take steps to clarify and communicate the extent of their sanctions legislation to these actors or encourage banks with offices within their jurisdictions to transfer funds to impartial humanitarian actors even if they operate in “high-risk” areas.
88 Scott Paul and Kathryn Achilles, “Correcting Course: Avoiding the Collision between Humanitarian Action and Counterterrorism”, Just Security, 23 May 2019, available at: www.justsecurity.org/64158/correcting-course-avoiding-the-collision-between-humanitarian-action-and-counterterrorism/.
89 UNSC Res. 2462, 28 March 2019, op. paras 5, 6; UNSC Res. 2482, 19 July 2019, op. para. 16.
90 For a discussion on the importance of Article 103 for the legality of UN sanctions which, in some instances, would be “per se” violations of international law but for the supremacy clause, see Masahiko Asada, “Definition and Legal Justification of Sanctions”, in M. Asada (ed.), above note 41, p. 8.
91 UN Charter, Art. 25. See International Court of Justice (ICJ), Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Areal Incident at Lockerbie (Libyan Arab Jamahiriya v. United States), Order, Provisional Measures, ICJ Reports 1992, paras 39, 42.
92 D. McKeever, above note 13, p. 31.
93 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, 2021, p. 2133. While some issues relating to humanitarian action, such as the prohibition of the war crime of starvation as a method of warfare, could be argued by some to qualify as jus cogens, such a reading with respect to the other elements relating to humanitarian action is, in the present author's opinion, unlikely to gather much support at this stage.
94 D. McKeever, above note 13, pp. 30, 31.
95 A. Debarre, above note 3, pp. 17–19.
96 Report of the Special Rapporteur, above note 75, para. 24.
97 This is not to say that these two propositions are without controversy. As mentioned above, determining what body of law is lex specialis is not a clear-cut task. Moreover, some may argue that lex specialis is irrelevant in light of Article 103. See B. Simma et al. (eds), above note 93, p. 2116. See also Saul, Ben, “International Humanitarian Law and Terrorism”, in Saul, Ben and Akande, Dapo (eds), The Oxford Guide to International Humanitarian Law, Oxford University Press, Oxford, 2020, p. 410Google Scholar; International Law Commission (ILC), Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. A/CN.4/L/682, 13 April 2006, para. 345.
98 UN Charter, Art. 103.
99 ILC, above note 97, paras 24–25. The ILC also notes that there are other, narrower understandings of “conflict” – for example, when one obligation “may be fulfilled only by thereby failing to fulfill another obligation” (para. 24).
100 For instance, the obligation to prevent assets or economic resources from being “made available … directly or indirectly to or for the benefit of” listed individuals or entities. UNSC Res. 2374, 5 September 2017, op. para. 4.
101 This is precisely the predicament that the EU faced with respect to the Kadi cases, albeit in the context of human rights law. In these cases, member States were required to freeze Mr Kadi's assets and any failure to do so would have constituted a violation of Article 25 of the UN Charter. At the same time, the sanctions measures were such that their implementation necessarily limited Mr Kadi's enjoyment of his human rights, including his right to property as well as his rights to be heard and to effective judicial review. See Antonios Tzanakopoulos, “The Solange Argument as a Justification for Disobeying the Security Council in the Kadi Judgments”, in Matej Avbelj, Filippo Fontanelli and Guiseppe Martinico (eds), Kadi on Trial: A Multifaceted Analysis of the Kadi Trial, Routledge, New York, 2014, p. 123.
102 Ibid.
103 See the discussion surrounding the text at above note 25.
104 ECtHR, Al-Jedda v. The United Kingdom, Appl. No. 27021/08, Judgment, 7 July 2011, para. 100.
105 Resolution 1546 authorized the taking of “all necessary measures” to contribute to the maintenance of security and stability in Iraq: see UNSC Res. 1546, 8 June 2004, op. para. 10. The question of whether mere authorizations, rather than obligations, stemming from the UNSC fell within the ambit of Article 103 was discussed by the ECtHR and was answered in the affirmative.
106 ECtHR, Al-Jedda, above note 104, para. 102.
107 Ibid.
108 UNSC Res. 2286, 3 May 2016, preambular para. 1.
109 “President Kaljulaid of Estonia: Pandemic Cannot Be Used as Pretext to Hinder Access of Humanitarian Aid”, statement given at the Open Debate on the Protection of Civilians in the UNSC, 27 May 2020, available at: https://un.mfa.ee/president-kaljulaid-of-estonia-pandemic-cannot-be-used-as-pretext-to-hinder-access-of-humanitarian-aid/.
110 R. Brubaker and S. Huvé, above note 4, p. 2.
111 Ibid., p. 9. The Somalia, DRC, Yemen, Mali, South Sudan and CAR sanctions all include the obstruction of humanitarian assistance or access as a listing criterion.
112 For an example of how conflicts between humanitarian considerations and UNSC obligations have been avoided in practice, see the ICJ's Namibia Advisory Opinion. Here, the Court opined that member States’ obligations under UNSC Resolution 276 “cannot be applied to certain general conventions such as those of a humanitarian character, the non-performance of which may adversely affect the people of Namibia”. ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, Advisory Opinion, ICJ Reports 1971 (Namibia Advisory Opinion), para. 122. The obligations under Resolution 276 to which the Court refers are as follows: UNSC Res. 276, 30 January 1970, op. para. 5, “[c]alls upon all States, particularly those which have economic and other interests in Namibia, to refrain from any dealings with the Government of South Africa which are inconsistent with paragraph 2 of the present resolution”. Paragraph 2 declares that the continued presence of South African authorities in Namibia is illegal and that all acts taken by those authorities on behalf of or concerning Namibia are illegal and invalid.
113 Such as what occurred in Yemen with respect to Save the Children: see above note 45.
114 D. A. Lewis and N. K. Modirzadeh, above note 38, p. 9, referring to US Supreme Court, Holder v. Humanitarian Law Project, 561 US 1, 21 June 2010.
115 As put by the International Criminal Tribunal for the former Yugoslavia (ICTY), the “Charter … speaks the language of specific powers, not of absolute fiat”. ICTY, Prosecutor v. Tadić, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Judgment (Appeals Chamber), 2 October 1995, para. 28.
116 Wet, Erika de, The Chapter VII Powers of the United Nations Security Council, Hart, Oxford, 2004, pp. 191–216Google Scholar.
117 UN Charter, Art. 24(2). See also Namibia Advisory Opinion, above note 112, para. 110: “The only limitations [to the powers of the UNSC to maintain international peace and security] are the fundamental principles and purposes found in Chapter I of the Charter.”
118 UN Charter, Art. 1(3): “To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”.
119 E. de Wet, above note 116, pp. 204–216; Gasser, Hans-Peter, “Collective Economic Sanctions and International Humanitarian Law: An Enforcement Measure under the United Nations Charter and the Rights of Civilians to Immunity: An Unavoidable Clash of Policy Goals?”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 56, No. 4, 1996, pp. 880, 881, 885Google Scholar.
120 See, for instance, ILC, above note 97, para. 331: “The question has sometimes been raised whether also Council resolutions adopted ultra vires prevail by virtue of Article 103. Since obligations for Member States of the United Nations can only derive out of such resolutions that are taken within the limits of its powers, decisions ultra vires do not give rise to any obligation to begin with. Hence no conflict exists.” See also B. Simma et al. (eds), above note 93, p. 2127; Liivoja, Rain, “The Scope of the Supremacy Clause of the United Nations Charter”, International and Comparative Law Quarterly, Vol. 57, No. 3, 2007, p. 586Google Scholar.
121 The EU, for instance, may have difficulties implementing a resolution that explicitly requires a violation of IHL. Recall a similar situation with respect to the Kadi cases, albeit with respect to Mr Kadi's human rights. In a series of cases, his human rights were preserved even in light of Article 103 of the Charter. In making such a determination, the European Court of Justice in Kadi I took the view that “obligations imposed by international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights”. See European Court of Justice, Kadi and Al Barakaat International Foundation v. Council and Commission, Case Nos C-402/05 P and C-415/05 P (Grand Chamber), 3 September 2008, para. 285. It remains to be seen whether IHL and humanitarian action would be given a similar status to human rights in Kadi, but it is difficult to rule this out given the impressive commitment that the EU has placed on respecting and promoting respect for IHL, as well as impartial humanitarian action. See Treaty on European Union (Consolidated Version), C 235/5, 7 February 1992 (entered into force 1 November 1993), Arts 3(5), 21(2)(g); Treaty on the Functioning of the European Union (Consolidated Version), OJ L. 326/47-326/390, 26 October 2012, Art. 214(2). See also Updated European Union Guidelines on Promoting Compliance with International Humanitarian Law, OJ C 303, 15 December 2009.
122 R. Brubaker and S. Huvé, above note 4.
123 See, for example, Thürer, Daniel, “Dunant's Pyramid: Thoughts on the ‘Humanitarian Space’”, International Review of the Red Cross, Vol. 89, No. 865, 2007CrossRefGoogle Scholar; Harrof-Tavel, Marrion, “Neutrality and Impartiality – the Importance of these Principles for the International Red Cross and Red Crescent Movement and the Difficulties Involved in Applying Them”, International Review of the Red Cross, Vol. 29, No. 273, 1989CrossRefGoogle Scholar.
124 As argued, this is not least because one of the purposes of UN sanctions is to facilitate and protect impartial humanitarian actors. R. Brubaker and S. Huvé, above note 4, p. 9.
125 ILC, above note 97, para. 331; B. Simma et al. (eds), above note 93, p. 2127; R. Liivoja, above note 120.