A PDF of the report is available at this link.
“Resolution 2664 (2022) and Counterterrorism Measures: An Analytical Frame for States”
Dustin A. Lewis, Radhika Kapoor, and Naz K. Modirzadeh
Harvard Law School Program on International Law and Armed Conflict
March 2024
Executive Summary
The United Nations Security Council passed Resolution 2664 (2022) on December 9, 2022, aiming to provide clarity to ensure the continuation of humanitarian activities in the face of restrictive measures, particularly asset freezes, imposed by the Council or its sanctions committees. Prompted by concerns about the adverse impacts of those measures on humanitarian action, including impairment of access as well as operational, funding, and legal challenges, the Security Council established a binding humanitarian carve-out. Meant to help safeguard the delivery of humanitarian aid to affected populations regardless of their association with, or potential benefits to, sanctioned entities, UNSCR 2664 (2022) reflects a significant policy shift with extensive legal implications.
A year after adoption, several important issues regarding the implementation of UNSCR 2664 (2022) have been settled. Those include its indisputable application to several specific sanctions regimes.
Yet significant uncertainties remain. Not least, if the Security Council does not extend the carve-out’s application with respect to the ISIL-and-Al-Qaida sanctions regime by December 9, 2024, the normative and operational framework will fracture, potentially undermining part of the resolution’s humanitarian intent. That may result in legal, financial, and operational confusion for the dozens of States that have already implemented the carve-out as well as in adverse consequences for the populations and providers who rely on the carve-out.
Furthermore, the uncertainty extends to the broader application of the resolution to counterterrorism measures beyond specific sanctions, raising questions about a coherent multilateral approach to humanitarian aid in conflict situations that are also considered counterterrorism contexts. That is because, in addition to asset freezes, several other Security Council-mandated measures meant to prevent and punish terrorism adversely impact humanitarian efforts. These include obligations to prevent and suppress the financing of terrorism and to criminalize support to terrorism.
States face urgent political and legal challenges to harmonize humanitarian commitments with security policies. UNSCR 2664 (2022) acts both as a directive for States to ensure the continuation of humanitarian aid with respect to Council-imposed asset freezes and as an invitation to consider integrating the carve-out’s policy shift into the Council’s broader counterterrorism measures.
This report provides an analytical frame through which States may consider that invitation. The analysis includes an overview of relevant UNSC measures, potential legal issues, and practical implications. It also outlines, in an annex, the actions taken by States and UN-system actors concerning the implementation of UNSCR 2664 (2022). By not prescribing a definitive approach, the report leaves scope for States to set their own paths while navigating the complex interplay of international law, security considerations, and humanitarian needs.