Introduction

The ongoing armed conflict between Israel and Hamas has raised a number of issues in international law, including the impact of the counter-terrorism legal regime on humanitarian protection under international humanitarian law (IHL) – the body of law applicable to situations of armed conflict. This is because the designation of Hamas as a terrorist entity by different states and organizations has led to the imposition of counter-terrorism measures that may affect humanitarian delivery or assistance. In this regard, the present entry aims to explore the potential impact of counter-terrorism measures on what is called in international law “principled humanitarian action” (resulting from the rules of IHL, see ICRC report on IHL and the Challenges of Contemporary Armed Conflict, pp. 59-61), in the specific context of the Israel-Hamas armed conflict.

1. The impact of counter-terrorism measures on the protection of humanitarian action in the light of IHL.

The legal framework of the fight against terrorism is characterized by instruments at the international, regional and national levels. On the international scene, the UN Security Council (UNSC) has created specific regimes that impose obligations on States to adopt sanctions against certain individuals and entities designated as “terrorists” or associated with such entities (see, for example, Resolutions 1267/1999 and 2253/2015), as well as other criminal counter-terrorism measures (see, for example, Resolutions 1373/2001 and 2178/2014). Sanctions include, for example, asset freezes, travel bans and arms embargoes, and measures of a criminal nature refer to the criminalization of terrorist actions in national laws.

These anti-terrorism measures have had repercussions in different areas, especially in relation to humanitarian action. The activities carried out by humanitarian organizations in situations of armed conflict have been directly affected, in various circumstances, for example, with limitations on commercial service transactions towards these organizations, or even through criminalizing or preventing the impartial provision of medical and humanitarian aid (see, for example, the Chatham House report, by Gillard). For this reason, the reports of the current UN Special Rapporteur on counter-terrorism, Ben Saul, and the former Rapporteur, Fionnuala D. Ní Aoláin (see here and here, respectively), noted that excessive counter-terrorism sanctions and financing laws, as well as the criminalization of various forms of support for terrorism, have undermined humanitarian activities protected by IHL.

More specifically, from a humanitarian perspective, the imposition of anti-terrorism measures has led to unwarranted delays in the delivery of life-saving assistance, sanctions compliance costs for humanitarian actors, and limitations on commercial service transactions to humanitarian organizations. In addition, donors are increasingly stringent and willing to include anti-terrorism clauses in funding agreements with humanitarian organizations, especially if such organizations maintain contact with entities or individuals designated as terrorists (listed under sanctions regimes).

In addition, the broad language adopted by several countries in their counterterrorism criminal legislation also leaves the door open to the criminalization of humanitarian activities (see, for example, Ferraro, p. 131-133, and Gillard, p. 60). This is despite the fact that criminal prosecutions of humanitarian actors for violations of anti-terrorism norms are still rare. Such criminalization can be found in activities that include, for example, contact with armed groups designated as “terrorists”, presence in areas where such groups are active, or health care for wounded or sick members of such groups (see ICRC report on IHL and the challenges of contemporary armed conflicts, p. 60).

In legal terms, the co-application of the anti-terrorism legal regime and IHL may conflict with fundamental assumptions for the protection of civilians, such as, for example, obligations mandating and protecting activities carried out by impartial humanitarian organizations. In this regard, IHL provides that impartial humanitarian organizations have the right to offer their humanitarian services to parties involved in international and non-international armed conflicts (see Common Articles 3 and 9/9/9/10 of the Geneva Conventions of 1949 -GC-). Parties to conflict also have an obligation to allow and facilitate the rapid and unimpeded passage of impartial humanitarian assistance to civilians in need (see Rule 55 of the ICRC Customary IHL Study). Also, while arguments have been made about the advantages of co-application of the two legal frameworks (see Saul’s argument, pp. 159-166), this methodology may affect compliance with other fundamental rules of IHL governing humanitarian action, such as the rules protecting the wounded and sick, those dedicated to humanitarian assistance (see, e.g., Articles 12 and 15 of GC I, Articles 10 and 16 of Additional Protocol I, Articles 7 and 8 of Additional Protocol II, Rule 110 of the ICRC Study), as well as the rules protecting humanitarian personnel (Rules 31 and 32 of the ICRC Study).

Now, having established the impact of anti-terrorist measures on the protection of humanitarian action guaranteed by IHL, it is necessary to approach the case of the Israel-Hamas armed conflict.

2. Counter-terrorism measures and humanitarian action in the Israel-Hamas armed conflict: some legal considerations

When referring to the sanctions regime, it should be mentioned that even before the October 7, 2023 attacks in Israel, Hamas had already been designated as a “terrorist” entity by states such as Australia, Canada, Japan, the United Kingdom, the United States and the European Union. Following the attacks, some of these countries established additional sanctions against Hamas, as well as against those who have been, in any way, involved with the organization. In the case of Canada, the State has imposed additional sanctions on Hamas and those individuals and entities that have been directly or indirectly involved in facilitating, supporting and financing the organization, which are considered integral to the planning and execution of Hamas attacks. The Council of the European Union also established a specific framework of restrictive measures that allows for holding accountable any person or entity that supports, facilitates or enables violent actions by Hamas and Palestinian Islamic Jihad. Another example is Switzerland, which, although it had not imposed anti-terrorism sanctions on Hamas in the past, has proposed a bill in its Parliament (where a public consultation was recently held) to designate Hamas as a terrorist organization and to ban in the country any organizational or financing activities of the group, as well as organizations or entities acting on its behalf. However Hamas is not yet designated as a “terrorist” entity by the UN, as it is not on the UNSC consolidated list, which includes all individuals and entities subject to measures imposed by the UNSC.

In the Israeli context, the Knesset (Israel’s Parliament) has also recently introduced three bills seeking, respectively: to designate the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) as a “terrorist” entity; to deprive the organization’s employees of the legal immunities and privileges afforded to UN employees in Israel; and to prohibit the agency from carrying out any mission, providing any service or performing any activity on Israeli territory. As of the writing of this blog post, these bills have passed their first review in Parliament, but must still pass two more reviews before they are approved and enter into force.

The main problem posed by these regimes relates to the fact that measures establishing sanctions for (especially “indirect”) involvement in “facilitating” or “supporting” organizations designated as “terrorist”, if interpreted in a broader sense, may limit and impair the activities of humanitarian organizations in situations of armed conflict. Activities that could be at risk include, for example, humanitarian training programs offered to people living in regions controlled by so-called “terrorist” groups and the delivery of first aid resources to these people.

In the case of the bills proposed by the Knesset, the humanitarian organization Doctors Without Borders (MSF), for example, has criticized the decision considering that it will hinder humanitarian assistance in the region, putting at risk both UNRWA’s facilities and its humanitarian personnel, in contradiction with the rules of IHL. In this regard, it is worth mentioning that, in relation to the alleged involvement of 12 UNRWA staff members in the October 7 attack on Israel (which has been confirmed and has led to the immediate termination of their appointments by the UNRWA Commissioner General), the Independent Review Panel appointed by the UN Secretary-General confirmed in its report that UNRWA has ample tools to ensure impartiality in its work.

Thus, these projects may conflict with the fundamental rules of IHL that protect the activities of impartial humanitarian organizations, especially if one takes into account the humanitarian principles that govern UNRWA’s mandate, as set out in UN General Assembly Resolutions 46/182 and 58/114. In general, in the absence of a robust and comprehensive humanitarian exception (as will be explained below), as is the case with most of the above-mentioned sanctions regimes, such counter-terrorism measures may conflict with IHL’s protection of principled humanitarian action.

In addition to the sanctions regime, the domestic criminalization of terrorist acts also poses challenges in the context of the conflict in question. Israel adopted its Anti-Terrorism Law (Law 5776) in 2016, establishing criminal and administrative legal provisions for the purpose of combating terrorism. The law creates a number of criminal offenses, including providing a service or facilitating resources to a terrorist organization (Section 23). In addition, the law also allows organizations affiliated with organizations designated as “terrorist” to be similarly designated as such, even when the ongoing activities are in no way linked to acts related to terror and violence (Section 2(a)(2)). In addition, some definitions of “member of a terrorist organization” and “terrorist act” under Article 2 may be considered broad and vague and therefore require further clarification.

These provisions open the door to a possible interpretation that criminalizes the activities of impartial humanitarian organizations operating among the civilian population in times of armed conflict. For example, activities such as providing humanitarian assistance to the wounded and sick living under the control of groups designated as “terrorists,” as well as conducting IHL training programs for members of these groups, would risk being criminalized under this law. This would be incompatible with the letter and spirit of IHL, which protects and guarantees principled humanitarian action.

3. The humanitarian exception as a possible tool to safeguard the protection of humanitarian action against the impact of anti-terrorist measures.

Taking into account the above challenges and the potential negative impact of counter-terrorism measures on humanitarian action, the inclusion of humanitarian exception clauses has been advocated as an appropriate legal alternative to address this impact, and thus ensure the protection of principled humanitarian action. As defined by the ICRC, “the aim of such exceptions is to exclude exclusively humanitarian actions undertaken by impartial humanitarian organizations from the scope of application of counter-terrorism measures” (see ICRC report on IHL and the Challenges of Contemporary Armed Conflict, p. 60). Therefore, considering that the current features of the current anti-terrorist legal framework do not take sufficient account of IHL, such humanitarian exception clauses are an effective way of preserving principled humanitarian action and ensuring respect for the rules of IHL.

In 2022, the UNSC adopted Resolution 2664, which establishes a permanent “humanitarian exception” to asset freeze measures imposed by UN sanctions regimes. Likewise, the European Union has recently introduced a humanitarian exception to asset freeze measures in its sanctions regime, with the objective that they should not impede the delivery of humanitarian aid. Accordingly, certain categories of humanitarian actors may engage in transactions with listed individuals and entities (of individuals or entities designated as “terrorists”) without prior authorization, provided that the objective is to provide humanitarian aid or support other activities that meet the basic human needs of the persons concerned.

Similarly, some States (see, for example, the Philippines, Switzerland and Chad) have included humanitarian exception clauses in their anti-terrorism legislation in order to exempt from criminal liability organizations whose activities are impartial and humanitarian in nature, in accordance with IHL.  In this regard, it is crucial that the material and personal scope of such clauses accurately reflect the protections afforded by IHL (see Ferraro, pp. 149-154).

Conclusion

It is clear that counter-terrorism measures, whether through a sanctions regime or the criminalization of terrorist acts through national legislation, can have a negative impact on the guarantee of principled humanitarian action. In the specific case of the Israel-Hamas conflict, some of the measures adopted risk significantly affecting the activities of humanitarian organizations that find protection in the fundamental rules of IHL.

The practice of inserting humanitarian exception clauses may be a viable and appropriate alternative to ensure that such instruments do not undermine the provision of humanitarian assistance, as an action protected by IHL. This is relevant if one takes into account that such efforts allow for the protection of persons affected by the conflict. Therefore, there is a need for regimes that impose sanctions under domestic anti-terrorism legislation, as is the case in Israel, to consider incorporating such clauses to recognize the protection of humanitarian action in accordance with IHL. However, recognizing the challenges of introducing a sufficiently comprehensive clause (especially in domestic anti-terrorism legislation), it is essential that sanctions regimes adopt such provisions (as the UNSC and EU have done), at least with regard to the assets freeze. This could contribute positively to the development and solidification of a counter-terrorism legal regime that recognizes, at its core, the protection guaranteed by IHL to principled humanitarian action.

Julio Veiga-Bezerra is a lawyer specializing in international humanitarian law, human rights and international criminal law. His areas of research focus on counter-terrorism, non-state armed groups and national implementation of IHL and human rights. Co-founder and Legal Consultant of the International Humanitarian Law Clinic at the Federal University of Rio Grande do Sul (UFRGS), where he teaches and supervises research projects on IHL. He has accumulated professional experience in the Legal Department of the International Committee of the Red Cross, the Human Rights and IHL Programs of the Inter-Parliamentary Union, and the Geneva Academy of International Humanitarian Law and Human Rights. Master in International Humanitarian Law and Human Rights by the Geneva Academy (Switzerland) and Law Degree by the UFRGS (Brazil) with a period of studies in international law by the Justus-Liebig-Universität Giessen (Germany).

The opinions expressed here do not represent the stance of the CIV or the entities to which the authors are or were affiliated.