Fionnuala D. Ní Aoláin is the United Nations (UN) Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. She was initially appointed to this position by the UN Human Rights Council in 2017 and was re-elected by member States for a further three-year term in 2020. In this capacity she works closely with States and UN entities to advance human rights protections in some of the most difficult contexts globally. She is also a University Regents Professor at the University of Minnesota Law School, and a Professor of Law at the Queen's University of Belfast, Northern Ireland.

In this interview, Ms Ní Aoláin discusses her duties as Special Rapporteur and illustrates the current challenges to the humanitarian space in the context of counterterrorism (CT) regulation.

Alena Douhan is the United Nations (UN) Special Rapporteur on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights. She was appointed to this position by the UN Human Rights Council in March 2020. As the mandate holder, she works with both States and UN organs and seeks to prevent, minimize and redress the adverse impacts of unilateral coercive measures on human rights. Ms Douhan is also a Professor of International Law at the Belarusian State University, Director of the Peace Research Center, and President of the Belarusian branch of the International Law Association.

Gilles de Kerchove was appointed European Union (EU) Counter-Terrorism Coordinator (EU CTC) on 19 September 2007. In this function, he coordinates the work of the EU in the field of counterterrorism (CT), maintains an overview of all the instruments at the Union's disposal, closely monitors the implementation of the EU CT strategy and fosters better communication between the EU and third countries to ensure that the Union plays an active role in the fight against terrorism.

He was previously Director for Justice and Home Affairs at the EU Council General Secretariat (1995–2007) and Deputy Secretary of the Convention which drafted the Charter of fundamental rights of the EU (1999–2000). Before that he was Head of the Private Office of the Deputy Prime-Minister of the Federal Government of Belgium, Minister of Justice and Minister of Economic Affairs (1993–1995) and Head of the Private Office of the Deputy Prime-Minister of the Federal Government of Belgium, Minister of Justice and Minister of SMEs (1989–1992).

Mr de Kerchove is a Professor of European Law at the Université Catholique de Louvain, at the Université Libre de Bruxelles and at the Université Saint Louis-Bruxelles.

He has published a number of books and numerous articles on European law, human rights, security and CT.

Janez Lenarčič is currently serving as Commissioner for Crisis Management in the European Commission, a mandate he took up in December 2019. In this capacity, he is responsible for EU civil protection as well as humanitarian aid. Mr Lenarčič served as Ambassador and Permanent Representative of Slovenia to the European Union (EU) in Brussels from 2016 to 2019. From 2014 to 2016, he held the Secretary of State position in the cabinet of the Slovenian Prime Minister. His previous experience also includes the position of Director of the Organization for Security and Cooperation in Europe's (OSCE) Office for Democratic Institutions and Human Rights, in Warsaw, from 2008 to 2014. He has also served as Secretary of State for European Affairs, including representing Slovenia during the Lisbon Treaty negotiations in 2007 and later representing the Slovenian EU Council Presidency to the European Parliament in 2008. In 2002 and 2003 he held the position of State Secretary in the cabinet of the Slovenian Prime Minister, after which he served as Slovenian Ambassador to the OSCE. In 2005, he was also Chairman of the Permanent Council of the OSCE in Vienna. In 2000 he served as Adviser to the Minister for Foreign Affairs, and the following year he became the Diplomatic Adviser to the then Slovenian Prime Minister. Between 1994 and 1999 he was posted to Slovenia's Permanent Representation to the United Nations (UN) in New York, where he also served as the alternate representative of Slovenia on the UN Security Council. Mr Lenarčič holds a degree in international law from Ljubljana University.

Vladimir Tarabrin – Special Representative of the Minister of Foreign Affairs of the Russian Federation for international anti-terrorist cooperation, Director of the Department on the Issues of New Challenges and Threats of the Ministry of Foreign Affairs of the Russian Federation (MFA). He graduated from the USSR Ministry of Foreign Affairs' Moscow State Institute of International Relations. He has been working in the Ministry of Foreign Affairs of USSR/Russia (MFA) since 1979 and held various diplomatic posts in the central office of the MFA and abroad. 1995–1998 – Head of Division, Deputy Director of the Legal Department. 1998–2002 – Senior Counsellor and Legal Advisor of the Permanent Mission of the Russian Federation to the United Nations in New York / Alternate Representative of the Russian Federation to the United Nations Security Council. 2002–2008 – Deputy Director of the Legal Department. In 2008–2013 he served as the Ambassador Extraordinary and Plenipotentiary of the Russian Federation to the Gabonese Republic. In 2013–2017 he was Ambassador at large (international anti-corruption cooperation). In 2017–2019 – Director of the Department Crisis Situation Centre of the MFA. Has diplomatic rank of Ambassador Extraordinary and Plenipotentiary.

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.

This article clarifies the ongoing confusion in doctrine and practice about both the actual and optimal interaction between international counterterrorism law (CTL) and international humanitarian law (IHL) in armed conflict. It discusses the advantages and disadvantages of the co-application of CTL with IHL, before considering a variety of techniques for mutually accommodating the interests of both regimes, particularly through partial exclusion clauses in counterterrorism instruments or laws. It concludes by identifying the optimal approach to the relationship between CTL and IHL, which recognizes the legitimate interests of both fields of law while minimizing the adverse impacts of each on the other.

Richard Baxter famously stated that “the first line of defence against international humanitarian law is to deny that it applies at all”. While “under-classification” remains an issue today, a parallel trend needs to be acknowledged. This is the tendency to over-classify situations of violence, especially in relation to transnational terrorist organizations such as the so-called Islamic State group or Al-Qaeda. This tendency stems from practical difficulties inherent in the changing operational environment. The last few years have witnessed a proliferation of armed non-State actors that are labelled or designated as terrorists (e.g., in Iraq, Syria, Mali, Nigeria and Yemen). Terrorist groups are characterized by opaque, often volatile organizational structures and tend to operate in decentralized networks rather than clear hierarchies. The formation of splinter groups, changing alliances, temporary reunification and even open hostility among former allies are common phenomena. This complex factual situation has led to the proliferation of theories of conflict classification, many of them arguing in favour of more flexible classification via the loosening of existing standards. Because international humanitarian law is in many respects less protective than international human rights law, particularly regarding the rules on the use of force and detention, classifying a situation of violence as an armed conflict when the threshold has not been met is a problem that should not be underestimated. In this article, we revisit the criteria of intensity and organization, as well as the related matter of the role of motives in conflict classification, considering conflicts involving armed groups described as terrorists. Our goal is to identify minimum requirements that could diminish the risk of over-classification by various stakeholders.

This article poses the question as to whether and why States overlook the prosecution of people for war crimes rather than terrorist offences, where war crimes would be preferred. It looks at whether a diverse range of States (Afghanistan, Australia, Mali, the Netherlands and the Russian Federation) are able through their domestic legislation to prosecute people for war crimes or for terrorist offences. It considers what the value of prosecutions is theoretically and legally, and what the impact of prosecutions is practically in a State. It proposes that prosecutors, police and judges should ask the question whether an alleged offender should be prosecuted for war crimes and/or terrorist offences with war crimes being the preferred option where there is evidence that they have been committed.

Since the adoption of the first United Nations Security Council (UNSC) counterterrorism resolution after the 9/11 attacks, the UNSC has increasingly required the domestic criminalization of “terrorism” acts and ancillary activities. Without the inclusion of an explicit international humanitarian law (IHL) or humanitarian exception, the UNSC has – so far – failed to harmonize the counterterrorism legal framework with IHL, leaving it up to States to define the interaction between the two. In their national legislation and courts, States’ interpretations have varied but counterterrorism legislations have been used to adjudicate conducts in armed conflicts, regardless of their legality under IHL. As the domestication of UNSC offences is ongoing, good practices are highlighted in this paper and recommendations are offered to ensure the development of international customary law in accordance with IHL.

While armed conflicts are principally governed by international humanitarian law (IHL), activities of members of non-State armed groups and their affiliates may also qualify as terrorist offences. After explaining why the concurrent application of IHL and criminal law instruments on terrorism causes friction, this article analyzes the chief mechanism for dissipating this friction: a clause excluding activities governed by IHL from the scope of criminal law instruments on terrorism. Such armed conflict exclusion clauses exist at the international, regional and national level. This article explains how an exclusion clause can best avoid friction between IHL and criminal law instruments on terrorism.

United Nations, regional and domestic counterterrorism measures have generated a cascade of adverse effects for impartial humanitarian activities in areas where designated groups are present. Certain humanitarian activities, diverted supplies and incidental payments can fall foul of broadly worded counterterrorism regulation proscribing or criminalizing financial and other support to designated groups. Donors to humanitarian organizations set strict conditions and financial institutions decline transactions, hampering impartial humanitarian activities in the very instances in which international humanitarian law (IHL) requires that they be allowed. Recognizing this, United Nations Security Council (UNSC) resolutions 2462 and 2482 adopted in 2019 have spelled out more explicitly than ever before the need for counterterrorism measures to comply with IHL and safeguard impartial humanitarian action in line with IHL. This article sets out those IHL obligations that govern humanitarian and medical activities and the types of safeguards that States have put in place to ensure their counterterrorism measures comply with IHL and allow for these activities. The UNSC's latest steer in resolutions 2462 and 2482 provides a foundation for States’ exclusion of impartial humanitarian and medical activities from the scope of application of their counterterrorism measures. This can be an effective way of averting adverse consequences for these activities where designated entities are present.

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.

This paper offers a brief overview of the potential interplay of United Nations (UN) sanctions regimes applied in contexts of armed conflict and humanitarian action. It traces how this issue has emerged within the counterterrorism (CT) sphere, before examining the possibilities of compatibility and risks for humanitarian action in conflict-related sanctions regimes. The paper lays out research gaps and outlines a new path for policy research focused on UN sanctions regimes imposed in the context of armed conflicts (“conflict-related”) yet falling outside the pure CT space. The paper concludes by illuminating why establishing further evidence on this issue is critical to both the legitimacy and the effective use of UN sanctions.

In this opinion note, we explore ways to understand the contemporary encounters between a growing global counterterrorism architecture and impartial humanitarian activities while critically assessing our own role in shaping responses to those encounters. Humbled by a decade of experience in this area, we aim to explain how counterterrorism concerns have been elevated over the humanitarian imperative and to offer potential avenues to secure greater respect for impartial humanitarian activities.

This article provides an overview of the impact of United Nations (UN) sanctions and counterterrorism (CT) measures on humanitarian action. The mandatory requirements of UN Security Council Resolutions 1267 and 1373 on member States to prohibit the provision of “funds, financial assets or economic resources” to terrorists complicates the work of humanitarian actors delivering assistance in areas where groups designated under the 1267 regime control territory. After explaining the impact of sanctions and CT measures on humanitarian actors, the article explores three primary sets of challenges encountered by such actors: (1) lack of clarity and adequate legal protection for carrying out humanitarian activities in countries subject to sanctions or areas in which designated entities operate; (2) financial access difficulties or de-risking by financial institutions limiting the ability of non-profit organizations (NPOs) to transfer funds to higher-risk jurisdictions due to banks’ risk aversion or fear of regulatory scrutiny of such transactions; and (3) conditions placed in funding contracts by donors effectively offloading CT and sanctions risks onto beneficiaries. The article analyzes experience with UN humanitarian carve-outs (exceptions as employed in the Somalia sanctions regime and case-by-case exemptions utilized in the North Korea regime), explaining why exceptions are the optimal solution for humanitarian actors. New data are presented indicating that the scope and scale of financial access difficulties experienced by NPOs have grown. Financial institutions, concerned about regulatory requirements to counter terrorism financing, are increasingly reluctant to provide banking services to NPOs working in highly sanctioned jurisdictions, and the resulting de-risking by banks results in significant problems for humanitarian organizations needing to move funds abroad. Additionally, contractual conditions related to CT and sanctions compliance are routinely employed by donors, resulting in an offloading of risk onto recipients without appropriate clarity and guidance from donors. Numerous initiatives in recent years have called attention to the challenges that humanitarians face: stakeholder dialogues, high-level meetings and other discussion fora promote broader understanding among participants and acknowledgement of the impacts that these polices have on humanitarian action. UN action to renew the 1267 regime's mandate and the consideration of a humanitarian carve-out in Afghanistan in the aftermath of the Taliban's takeover represent opportunities to reform sanctions in order to better protect humanitarian action. Recommendations are presented for each of the three sets of challenges, with an urgent call for the Security Council to embrace the opportunity for reform and more effectively balance the equally critical objectives of countering terrorism and safeguarding humanitarian action.

For some time, the impact of counterterrorism (CT) measures and sanctions on humanitarian action did not attract the attention that it merited. However, owing to a surge in awareness of this issue over the past two years, the fact that CT measures and sanctions can have negative consequences for principled humanitarian action is now widely accepted by a broad range of actors, and is supported by a strong body of research identifying and analyzing these impacts. This article adds to this existing work by examining recent developments related to this issue. It looks at the impact of growing risk aversion in relation to CT measures and sanctions among donors, humanitarian organizations and other actors on principled humanitarian action, and highlights recent efforts to address and mitigate these impacts. The central argument is that CT and sanctions risks cannot be eliminated from humanitarian action. As such, policy change is needed to protect principled humanitarian action from further detrimental impacts and to ensure that people can access the assistance they need, regardless of where they are located.

Domestic counterterrorism (CT) frameworks have been increasingly employed to criminalize impartial medical care to wounded and sick from non-State armed groups labelled as criminal or terrorist in non-international armed conflicts (NIACs). It has also contributed to legitimize attacks and incidental damage on medical facilities in armed conflicts overlooking the international humanitarian law (IHL) protection afforded to the wounded and sick as well as to medical personnel and facilities. This article compares the treatment of the wounded and sick in both international armed conflicts (IACs) and NIACs in the context of the global war on terrorism. It demonstrates the impacts that CT measures have on the IHL protection of the medical mission while demonstrating the increased acceptance that some incidental damages, such as the downgrading of IHL core protections, are tolerated, by some countries in the global fight against terrorism. The article further illustrates how the special criminal status of wounded and sick from non-State armed groups in armed conflicts that are evolving in a CT context can mechanically contaminate the status of impartial humanitarian medical activities, facilities and personnel in such contexts. It also shows how the simultaneous application of CT and IHL in numerous contexts of armed conflict as well as the involvement of State armed forces under those two different bodies of law contributes to blurring the lines between IHL and CT, between protected or “criminal” humanitarian and medical activities. In contexts of complex military operations, this reality creates a mind-set conducive to legal mistakes and security incidents on the medical mission. Although there is a distinction between the protection from attacks and the protection from prosecution under IHL, in practice, numerous military operations to arrest are launched in ways similar to attacks and can end up with some killings. The article concludes that States could easily limit the impact of CT on IHL by adding an exemption in their CT framework for humanitarian and medical assistance that is compatible with IHL. This is the first necessary condition – even if obviously not a sufficient one – to end the legal ambiguity between IHL and State domestic law as to the criminalization or loss of the IHL protected status for the much necessary needed medical assistance and care activities in times of armed conflict that are evolving in a CT context.