Security Council Resolutions
The United Nations Security Council is the world’s preeminent body charged with maintaining or restoring international peace and security.
Stakes and Fault Lines
Whether the humanitarian and medical needs of fighters hors de combat (out of the fight) and civilians in an armed conflict also characterized as a counterterrorism context are ultimately met depends partly on complex legal argumentation. In particular, Security Council resolutions implicate at least two sets of linked potential legal fault lines, each with significant stakes. A first possible fault line concerns whether the characterization of an adversary as a terrorist may justify limiting the applicability, scope, or content of international legal rules meant to safeguard humanitarian and medical activities in relation to that adversary, including provisions aimed at meeting the needs of fighters hors de combat. A second concerns whether humanitarian and medical activities themselves — including services aimed at addressing the unmet needs of civilians in territories under the control of a party characterized as a terrorist entity — may be legitimately considered to constitute prohibited “support” to terrorists.
At a practical level, these stakes implicate urgent matters of life and death in numerous contemporary wars that double as counterterrorism contexts. At a legal-institutional level, the issues concern the relative authority of the Security Council not only to “(quasi-)legislate” counterterrorism matters but also to shape Member States’ disposition towards IHL and other bodies of law. And at a normative level, the interpretation and application of these resolutions may affect whether some of the foundational ethical commitments and value judgments reflected in existing IHL rules meant to provide protection, relief, and medical care in all armed conflicts will endure.
FAQs
What is a Security Council resolution, and why does it matter legally?
A resolution is one of the types of texts adopted by the U.N. Security Council. Under Article 25 of the U.N. Charter, “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the […] Charter.” According to the International Court of Justice (ICJ), determining whether a particular text adopted by the Security Council is a “decision” in the sense of Article 25 requires a case-specific assessment. In an advisory opinion, the ICJ referred to certain criteria to make that assessment: specifically, the act’s wording, its genesis, its legal basis, and the context of its adoption. It has been said that it is “typical[]” for different types of legal acts — both decisions and recommendations — to be contained side by side in a single Security Council resolution. In other words, a decision entailed in one paragraph may immediately be followed by a recommendation set out in another paragraph, or vice versa.
In terms of legal consequences, all U.N. Member States are obliged to carry out a decision adopted by the Security Council under Article 25 in accordance with the Charter. In contrast, the legal effect of a Council recommendation has been said to be that Member States retain discretion whether or not to act, but they must exercise that discretion in good faith and consider the recommendation in that sense.
How do Security Council resolutions and IHL interact?
Ongoing debates over the legal relations between acts of the Security Council and IHL implicate how to ascertain the applicability, scope, and content of legal rules governing aspects of efforts to safeguard humanitarian and medical activities and to counter terrorism. Based on our analysis, a few general assertions may be put forward. First, it seems that a norm entailed in an act of the Security Council and a norm from IHL should be interpreted as compatible to the greatest possible extent. Second, it may be important to ascertain whether relevant counterterrorism norms and IHL norms are of a peremptory character — that is, a norm that may not be derogated and may be modified only by a subsequent norm having the same character. And third, the conditions to bring the Charter’s primacy clause (in Article 103 of the U.N. Charter) into operation are relatively strict.
Resolution 2462 (2019)
On March 28, 2019, the U.N. Security Council unanimously adopted Resolution 2462 (2019) on countering the financing of terrorism. In the preamble of Resolution 2462 (2019), the Security Council “reaffirm[s] that terrorism constitutes one of the most serious threats to international peace and security” and expressly states that the Council is “[a]cting under Chapter VII of the Charter of the United Nations.”
Operative Paragraph 5
In operative paragraph (OP) 5 of Resolution 2462 (2019), the Council “[d]ecides that all States shall, in a manner consistent with their obligations under international law, including international humanitarian law, international human rights law and international refugee law, establish serious criminal offenses” related to certain aspects of the financing of terrorism. In particular, pursuant to that paragraph, the Council “[d]ecides” that all States shall:
[E]nsure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense the wilful provision or collection of funds, financial assets or economic resources or financial or other related services, directly or indirectly, with the intention that the funds should be used, or in the knowledge that they are to be used for the benefit of terrorist organizations or individual terrorists for any purpose, including but not limited to recruitment, training, or travel, even in the absence of a link to a specific terrorist act[…].
Three elements of the text — the express invocation in the preamble that the Council is acting under Chapter VII of the Charter alongside the express uses in OP 5 of the terms “[d]ecides” and “shall” — combine to provide a strong basis to assert that the paragraph contains a decision in the sense of Article 25 of the U.N. Charter. If that interpretation is accurate and the Council adopted OP 5 in accordance with the Charter, Member States are mandated to carry out the decision by taking — in a manner consistent with their obligations under international law, including IHL — the action prescribed relating to the establishment of the indicated serious criminal offenses concerning countering the financing of terrorism.
In terms of content, it may be argued that the following is excluded from the scope of the financial or economic “benefit” for “terrorist organizations and individual terrorists” proscribed in OP 5 of Resolution 2462 (2019): such a “benefit” that may be conceptualized as arising in respect of humanitarian or medical activities compatible with IHL.
Operative Paragraph 6
In OP 6 of Resolution 2462 (2019), the Security Council “[d]emands that Member States ensure that all measures taken to counter terrorism, including measures taken to counter the financing of terrorism as provided for in this resolution, comply with their obligations under international law, including international humanitarian law, international human rights law and international refugee law[…].” OP 6 may be understood as entailing a decision under Article 25 of the Charter through which the Council is mandating compliance by Member States with their respective IHL obligations. A legal effect of such an interpretation is that non-compliance by a Member State with their IHL obligations in relation to counterterrorism measures will constitute not only a violation of applicable IHL (under the general principle mandating performance of legal obligations in good faith) but also a violation of the U.N. Charter (for not carrying out a Security Council decision made in accordance with the Charter).
It may be argued that this notion of “ensur[ing]” encompasses the State engaging in the conduct necessary — including at least by all relevant State organs as well as others whose conduct is attributable to the State — to make certain that all measures taken by the State to counter terrorism are compatible with the State’s IHL obligations, including those pertaining to humanitarian and medical activities. In other words, under this interpretation, a State must take the necessary and sufficient steps to ensure that (among other elements) its national laws, executive instruments, prosecutorial practices, and humanitarian-donor policies do not impair or prevent the performance by the State of its IHL obligations in this area.
Operative Paragraph 24
Finally, in OP 24 of Resolution 2462 (2019), the Security Council “[u]rges States, when designing and applying measures to counter the financing of terrorism, to take into account the potential effect of those measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law[…].” This excerpt is arguably of a hortatory character — in other words, the Security Council seems to exhort or encourage States to act, but the Council does not necessarily also oblige States to take the concerned action. Thus, from an international legal perspective, Member States arguably retain discretion whether or not to take into account the potential effects of certain counterterrorism measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with IHL. However, Member States are nevertheless at least arguably obliged to exercise that discretion in good faith and consider this exhortation from the Security Council in that sense.
Resolution 2482 (2019)
On July 19, 2019, the Security Council unanimously adopted Resolution 2482 (2019) on linkages between international terrorism and organized crime. In adopting Resolution 2482 (2019), the Security Council did not expressly “[d]ecide” that States shall take a particular measure to counter terrorism, nor did it expressly act under Chapter VII of the U.N. Charter. Nevertheless, one operative paragraph of Resolution 2482 (2019) is relevant here. In OP 16 of the resolution, the Security Council:
“Urges Member States to ensure that all measures taken to counter terrorism comply with their obligations under international law, including [IHL], international human rights law and international refugee law, and urges states to take into account the potential effects of counterterrorism measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with [IHL][…].”
This text is arguably of a hortatory character. In other words, as in OP 24 of Resolution 2462 (2019), the Security Council seems to exhort or encourage States to act, but the Council does not necessarily also oblige States to take the concerned action. Accordingly, the “take into account” provision OP 16 of Resolution 2482 (2019) arguably entail an intensive encouragement or exhortation — or, at least, an earnest request or recommendation — from the Security Council for States to take the prescribed action. Yet, from an international legal perspective, Member States arguably retain discretion whether or not to take into account the potential effects of counterterrorism measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with IHL. Nonetheless, Member States are at least arguably obliged to exercise that discretion in good faith and consider these exhortations from the Security Council in that sense.
IHL continues to apply
Irrespective of whether or not the “take into account” provisions in Resolutions 2462 (2019) and Resolution 2482 (2019) are interpreted to constitute a binding decision under Article 25 of the U.N. Charter, IHL rights and obligations related to humanitarian and medical activities continue to be applicable.
Key Terms
The Security Council did not define the key terms and concepts related to the “take into account” provisions of Resolution 2462 (2019) and Resolution 2482 (2019). We offer interpretations concerning the content and scope of those terms.
“Counterterrorism Measures” and “Measures to Counter the Financing of Terrorism”
In both resolutions, the Security Council was concerned with State measures to counter terrorism. However, the specificity of measures at issue varied. OP 16 of Resolution 2482 (2019) concerns “counterterrorism measures […].” OP 24 of Resolution 2462 (2019) pertains to “measures to counter the financing of terrorism […].” In terms of their material scope, we interpret these notions — “counterterrorism measures” and “measures to counter the financing of terrorism” — as encompassing all actions taken by a State to achieve a relevant counterterrorism purpose. Regarding OP 16 of Resolution 2482 (2019), we interpret such purposes as including at least the prevention, suppression, penalization, prosecution, and punishment of acts of terrorism. With respect to OP 24 of Resolution 2462 (2019), we interpret such purposes as including at least the prevention, suppression, penalization, prosecution, and punishment of the provision or collection of funds, financial assets, economic resources, or financial or other related services for the benefit of organizations designated under an applicable regime as terrorist organizations or of individuals designated under an applicable regime as terrorists.
As for the legal source or origin of salient counterterrorism measures, we interpret the notion as encompassing at least the measures taken by a State as part of its efforts to accept and carry out counterterrorism-related decisions or recommendations of the Security Council. That said, because the Security Council did not expressly limit the material scope of pertinent counterterrorism measures only to such measures related to Council-mandated obligations or Council-issued recommendations, the relevant concepts arguably could be said to cover all measures taken by a State to counter terrorism (Resolution 2482 (2019)) or to counter the financing of terrorism (Resolution 2462 (2019)), irrespective of the legal provenance of the measures. In terms of personal scope, we interpret these notions — of “counterterrorism measures” and “measures to counter the financing of terrorism” — as encompassing all conduct involved in, or otherwise integral to, designing and applying these measures, whether those acts are conducted by an agent or organ of the State — including those agents and organs exercising a legislative, executive, judicial, or other function — or by any other person or entity whose conduct is attributable to the State.
“Designing and Applying”
OP 24 of Resolution 2462 (2019) pertains in part to States’ “designing and applying measures to counter the financing of terrorism[…].” In terms of these notions’ material scope, we interpret this notion of “designing” such counterterrorism measures as encompassing all conduct of a State involved in, or otherwise integral to, conceiving, devising, or planning those measures. And we interpret this notion of “applying” such counterterrorism measures as encompassing all conduct of a State involved in, or otherwise integral to, bringing those measures into practical operation or otherwise employing them. In terms of the notions’ personal scope, we interpret these notions as encompassing all conduct involved in, or otherwise integral to, “designing” or “applying” those measures, whether the acts are conducted by an agent or organ of the State — including those agents and organs exercising a legislative, executive, judicial, or other function — or by any other person or entity whose conduct is attributable to the State.
“Exclusively Humanitarian Activities, including Medical Activities, that are Carried Out by Impartial Humanitarian Actors in a Manner Consistent with International Humanitarian Law”
Understanding the phrase “exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law” — which the Security Council employed in both resolutions — is central to a considered, good-faith interpretation and application of the “take into account” provisions of Resolution 2462 (2019) and Resolution 2482 (2019). However, at the outset, it may be emphasized that, depending on how it is interpreted, the phrase may not necessarily encompass all humanitarian and medical activities that are compatible with IHL. If it is interpreted in that restrictive manner, the phrase may set a floor of what humanitarian and medical activities are covered for purposes of a “take into account” system. States may nevertheless wish to decide whether to widen the set of activities covered by its “take into account” system to include all humanitarian and medical activities compatible with IHL.
We interpret the phrase “humanitarian activities, including medical activities” as encompassing at least all activities involved in, or otherwise integral to, the provision of relief, protection, or medical services (or a combination thereof) compatible with IHL, including in relation to an armed conflict that also qualifies as a counterterrorism context. As we mentioned above, the structure of the wording in the resolutions — “humanitarian activities, including medical activities[…]” — may initially be read to suggest that medical activities are a subset of humanitarian activities. Yet in legal doctrine and practice, it is well recognized that humanitarian and medical activities may overlap or be separate. In terms of potential beneficiaries, IHL rules structure and cover numerous humanitarian and medical activities, including in respect of the wounded and sick in armed forces in the field; the wounded, sick, and shipwrecked members of the armed forces at sea; prisoners of war; other fighters who no longer take an active part in hostilities, such as those hors de combat; and civilians.
Additionally, in our view, due to the adverb “exclusively,” the phrase encompasses only activities that are of an entirely “humanitarian” character. According to that approach, activities that constitute, for example, “development” or “peace” activities that fall outside of this definition of “humanitarian activities, including medical activities” — even where those “development” and “peace” activities may be carried out consistent with another field of international law, such as international human rights law — are not covered by the terms in OP 24 of Resolution 2462 (2019) and OP 16 of Resolution 2482 (2019).
Regarding the actors involved in such humanitarian and medical activities, we interpret the phrase to cover situations where exclusively humanitarian or medical activities are carried out by a subset of humanitarian actors — namely, impartial humanitarian actors — in a manner consistent with IHL. We interpret the term “humanitarian actors” here as encompassing at least entities (such as a State, an international organization, or a private humanitarian organization) or individuals that seek to carry out, or that actually carry out, exclusively humanitarian or medical activities compatible with IHL.
We interpret the term “impartial,” as set out in Resolution 2462 (2019) and Resolution 2482 (2019) as an adjective modifying the phrase “humanitarian actors,” as distinguishable from neutral humanitarian actors. That is because, at least with respect to humanitarian activities as contemplated under IHL, “impartiality” and “neutrality” are not synonymous in terms of the character of the actors involved. For example, with respect to the provision in Common Article 3 of the four Geneva Conventions of 1949 stipulating that “[a]n impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict,” in the view of the ICRC, impartial “refers to the attitude to be adopted vis-à-vis the persons affected by the armed conflict when planning and implementing the proposed humanitarian activities.” Contrariwise, in relation to humanitarian activities, the ICRC has formed the position that neutral “refers to the attitude to be adopted towards the Parties to the armed conflict.” If that distinguishing approach is adopted here, the upshot is that, to qualify as an “impartial humanitarian actor[]” in respect of OP 24 of Resolution 2462 (2019) and the second part of OP 16 of Resolution 2482 (2019), arguably only the humanitarian or medical needs of the persons affected by an armed conflict may inspire the proposals, priorities, and decisions of an entity or individual when determining which activities to undertake and where and how to implement them. In other words, while the “impartial humanitarian actors” must be impartial in the sense of being motivated by the needs of the affected persons, they need not additionally be neutral in the sense of refraining from taking sides in hostilities or engaging in controversies of a political, racial, religious, or ideological nature. It may be noted that not only private humanitarian organizations (such as Médecins Sans Frontières) but also State actors (such as medical personnel of an armed force) and others, including unaffiliated individuals, may arguably fall into this definition of “impartial humanitarian actors.”
Finally, OP 24 of Resolution 2462 (2019) and the second part of OP 16 of Resolution 2482 (2019) concern “exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law[…].” We interpret the phrase “in a manner consistent with international humanitarian law” to mean that the relevant humanitarian and medical activities are those that the covered humanitarian actors carry out in relation to a potential or existing armed conflict in a way that is compatible with IHL. In practice, most of the relevant humanitarian and medical activities will be carried out by the covered humanitarian actors concerning an existing armed conflict. However, we think there may be value in interpreting the phrase “in a manner consistent with international humanitarian law” as also encompassing relevant humanitarian and medical activities carried out by the covered humanitarian actors in relation to a potential armed conflict in a way that is compatible with IHL. The distinction between existing and potential armed conflicts may be subtle but, in our view, may nevertheless be significant. Humanitarian actors regularly take steps to prepare to offer and provide humanitarian services in ways that are compatible with IHL, including, for example, in anticipation that a new armed conflict may emerge. Limiting the interpretation of the phrase to humanitarian and medical activities carried out in relation to an extant armed conflict may exclude from the scope of activities covered by the phrase in these Security Council resolutions the activities that humanitarian actors may take to prepare to offer and provide humanitarian and medical services if and when it is warranted to do so in order to meet unaddressed needs.
What it may mean for humanitarian and medical activities to be carried out by the covered humanitarian actors concerning a potential or existing armed conflict in a way that is compatible with IHL is likely to depend in part on the nature, scope, and content of the IHL provision(s) potentially or actually applicable to the anticipated or existing circumstances involving those activities. Consider two sets of examples — one for an existing armed conflict and another for an anticipated armed conflict. Regarding an existing armed conflict, an impartial humanitarian actor may need, in certain contexts, to obtain the consent of the State concerned in order for the actor’s activities to be carried out in a manner consistent with IHL. Regarding an anticipated armed conflict, suppose that an impartial humanitarian actor expects that an armed conflict is likely to break out soon and, if it does, the conflict will give rise to significant medical needs of civilians and fighters hors de combat that the party concerned will likely not be able to meet. At least where certain IHL instruments are applicable, humanitarian actors involved in the provision of medical care may not make any distinction among the wounded and sick — including fighters hors de combat characterized as terrorists — founded on any grounds other than medical ones. Counterterrorism measures that penalize the provision of medical care compatible with IHL would impair humanitarian actors from preparing to carry out, let alone actually carrying out, such care.
“Potential Effects”
In OP 24 of Resolution 2462 (2019), the Security Council speaks of taking into account “the potential effect” of measures to counter the financing of terrorism. The second part of OP 16 of Resolution 2482 (2019) pertains to taking into account “the potential effects of counterterrorism measures […].” As noted above, the range of potential and actual detrimental effects of counterterrorism measures on humanitarian and medical activities, in particular, has been extensively documented. We interpret the Security Council’s notion of “potential effect[s]” as encompassing all of the possible detrimental effects — whether flowing from measures to counter the financing of terrorism (under OP 24 of Resolution 2462 (2019)) or from counterterrorism measures (under the second part of OP 16 of Resolution 2482 (2019)) — on covered humanitarian and medical activities. The effect may be of an operational, financial, security, legal, security, reputational, or other nature. To fall under this notion of “potential effect[s],” it is not necessary for the effect to have actually materialized; rather, the effect needs to be only of a potential character, in the sense of being possible, prospective, or latent.
“To Take into Account”
In OP 24 of Resolution 2462 (2019), the Security Council “[u]rges States, when designing and applying measures to counter the financing of terrorism,to take into account the potential effect of those measures on” certain humanitarian and medical activities. In the second part of OP 16 of Resolution 2482 (2019), the Security Council “urges states to take into account the potential effects of counterterrorism measures on” certain humanitarian and medical activities. We interpret the notion of “to take into account” in these resolutions as encompassing at least the identification of those potential effects and taking the action necessary to ensure that the indicated measures reflect respect for or are otherwise compatible with potentially or actually applicable IHL rights and obligations concerning humanitarian and medical activities.
To address these issues comprehensively, a State may decide to evaluate the counterterrorism-related conduct of all of its organs and agents as well as others whose conduct is attributable to the State, whether the entity or person exercises a legislative, judicial, executive, or other function. A core State objective here might be framed in terms of implementing a sufficiently vast and detailed program to ensure compliance by the State’s counterterrorism-related authorities with the State’s IHL rights and obligations pertaining to humanitarian and medical activities. For example, a State may decide to review whether its relevant legislative, regulative, or donor texts run counter to IHL provisions permitting humanitarian and medical actors to engage in their respective activities in armed conflicts, including conflicts that also qualify as counterterrorism contexts. If, for instance, a counterterrorism-related legislative act is deemed incompatible with IHL rights and obligations, the State may repeal the act or otherwise render it ineffective. Numerous other potential examples may arise across the diverse range of potentially relevant counterterrorism measures.
