Moments of scrutiny and change in the design and use of UN sanctions regimes

Applied under Article 41 of the UN Charter, UN sanctions are composed of all measures “not involving the use of armed force” that the UN Security Council can adopt to give effect to its decisions.Footnote ² Sanctions are one of the critical instruments employed by the Security Council in its efforts to maintain or restore international peace and security. When imposed in armed conflict situations, their primary goal is contributing to mitigating and preventing an escalation of or return to violent conflict.Footnote ³ Sanctions are also used to counter terrorism. In practice, UN sanctions regimes most frequently include assets freezes, travel bans, arms embargoes and commodity bans. They are applied to individuals and entities with the aim of changing their behaviour, constraining their activities or signalling that their actions fall outside generally accepted international norms.Footnote ⁴ Article 25 of the UN Charter creates a legal obligation on member States to carry out the decisions of the UN Security Council, including the Council's call for sanctions under Article 41.

Members of the Security Council have redesigned and refined sanctions over time, leading to more targeted, efficient and effective versions of the tool. Two significant moments of crisis, scrutiny and change have fundamentally altered the design of and approach to UN sanctions. The first involved the reforms undertaken between 1998 and 2002 in response to the devastating humanitarian impacts of comprehensive sanctions on the civilian population in the former Yugoslavia, Haiti and Iraq. Comprehensive sanctions measures were found to have contributed to deleterious effects both through the restriction of access to essential goods, including medical supplies and petrol, and through the secondary effects that arose as governments diverted resources away from public services and towards sanctions evasion.Footnote ⁵ In view of these consequences and in response to concerted lobbying from a coalition of researchers, member States, UN officials and private sector representatives, the UN Security Council members adapted their approach to designing sanctions. Instead of placing comprehensive sanctions on a government or territory as a whole, the architects of UN sanctions regimes shifted to using “targeted” measures intended to have a limited, strategic impact on selected individuals and entities. In addition, sanctions designers narrowed trade embargoes to diminish the impact on the overall economy.Footnote ⁶ Sanctions designers intended for the new approach to help minimize the effects of sanctions on the civilian population and the national or regional economy while also increasing the efficacy of the measures in achieving their stated goals of exerting influence over specific individuals or groups.

The second moment of crisis, scrutiny and change emerged as an unexpected consequence of efforts to make sanctions more targeted. As sanctions measures became more individualized and discriminating, the procedures for listing and the process required for de-listing individuals were called into question.Footnote ⁷ A growing wave of litigation raised the issue that the UN's targeted listings were unduly impacting individuals’ and entities’ due process rights, especially in the CT sphere. In the wake of significant pressure from both member States and national and regional courts, the UN Security Council, wishing to protect both the efficacy and the legitimacy of its measures, undertook to address the threats to due process rights in the CT sphere, established an ombudsperson for the 1267 sanctions regime (named after Security Council Resolution 1267) and began to reform the listing procedures.Footnote ⁸

UN sanctions are now facing a third moment of crisis and scrutiny around the impact of current sanctions measures on the humanitarian sector's ability to safely, promptly and effectively access and assist those in need.Footnote ⁹ The scrutiny to date has mostly focused on UN sanctions applied with the sole objective of countering terrorism. Although not necessarily new for many humanitarian actors, this issue has gained momentum in the past few years, attracting attention both amongst the broader set of sanctions implementers and among sanctions designers. However, UN sanctions imposed in situations of armed conflict with different objectives than countering terrorism, such as conflict resolution, have largely been left out of the analysis.

This history of previous challenges and processes of reform of UN sanctions presents two useful lessons on how to understand and subsequently address the current crisis. The first lesson is that sanctions’ effectiveness is inextricably linked to their legitimacy as a global policy tool. While the Security Council may design and adopt the measures, it relies on others to implement them.Footnote ¹⁰ When left unaddressed, past challenges have hurt the legitimacy of the measures in the eyes of other States. In turn, scrutiny of the legitimacy of sanctions has led to decreased willingness on the part of States to implement them. Accordingly, UN sanctions, as a whole, have become less effective. Second, the previous two moments of change demonstrate that when faced with clear evidence of adverse impacts, the UN Security Council has risen to the challenge and enacted reforms.Footnote ¹¹ Thus, there is reason to believe that the Security Council and its sanctions committees may be moved to act in this third case as well. By continuing to respond to new evidence and refine its tools, the Council helps to protect both the legitimacy and the effectiveness of sanctions.

Overview of existing research and looking beyond CT sanctions

Over the last decade, there have been an increasing number of reports from humanitarian organizations, UN humanitarian agencies, civil society organizations and sanctions experts that raise concerns that CT measures in general, and CT-related sanctions measures in particular, are negatively impacting the ability of humanitarian organizations to carry out their activities in contexts of armed conflicts in line with provisions under IHL.Footnote ¹²

As demonstrated by existing research, the constraints posed by CT measures writ large and CT sanctions in particular on humanitarian actors’ ability to operate in certain areas or for the benefit of certain categories of individuals challenge the fundamental requirement under IHL according to which humanitarian actors must operate in an impartial manner.Footnote ¹³ These constraints also take a toll on the ability of humanitarian organizations to be perceived as neutral actors by the parties to the conflict.Footnote ¹⁴ Although the concrete negative impacts of CT sanctions in particular on humanitarian action are difficult to isolate from the impacts of other international, regional and national CT measures, research conducted to date provides initial evidence that the three main sanctions measures used in efforts to counter terrorism – asset freezes, travel bans and sectoral embargoes – may all affect humanitarian action. As a result, some research has concluded that a tension exists between CT measures writ large, CT sanctions, and IHL – in particular, IHL rules governing humanitarian activities, IHL rules protecting the wounded and sick as well as persons providing medical care, and IHL rules protecting humanitarian personnel.Footnote ¹⁵

The vast majority of existing UN sanctions regimes applied in armed conflicts, however, pursue objectives other than countering terrorism. In these regimes, the primary goal of sanctions is to address the existing armed conflict and pursue objectives such as conflict mitigation or resolution, protection of civilians, and respect for the humanitarian mission. These sanctions regimes are “conflict-focused” or “conflict-related”. Yet, research on the impacts of UN sanctions on humanitarian activities in these conflict-related regimes is somewhat scarce. As described above, scholars have established a tension between CT measures and IHL rules protecting the humanitarian space, and it remains to be seen whether this tension also exists in the conflict-related sanctions regimes. While research is currently lacking, two assumptions can be made on this issue: one of alignment, and one of risks.

Compatibility and complementarity between conflict-related sanctions regimes and humanitarian action

The design of conflict-related sanctions regimes can be complementary to the application of IHL rules. Indeed, unlike in the single CT regime, conflict-related sanctions regimes have always included language and provisions illustrating the intent or the willingness of the Security Council to use sanctions as a tool to help facilitate the delivery of humanitarian assistance and to protect humanitarian organizations from unlawful action and abuse by parties to the conflict. There are three elements of protection used by the UN Security Council that are worth noting here.

First, in all but one of its conflict-related sanctions regimes, the Security Council recalls the obligation of the parties to the conflict to comply with their obligations under international law, including IHL, human rights law and refugee law. It may be useful to note that this call to comply with IHL in general implicitly covers the specific rules regulating humanitarian access and the protection of humanitarian and medical workers (hence all IHL obligations on the parties to the conflict pertaining to the protection of the humanitarian space). Moreover, all but one of the conflict-related regimes includes language specifically referring to and condemning violations of IHL, violations which often represent barriers to humanitarian access and humanitarian action. By contrast, the 1267 (ISIL and Al-Qaeda) UN sanctions regime – known as IDAQ – does not refer to the obligations of the parties to the conflict to comply with IHL, and very rarely contains specific condemnations of IHL violations, even where the targeted individuals and groups are “parties to the conflict” and are reported as being involved in violations of the laws of war.

Second, and again in contrast to the IDAQ regime, all conflict-related regimes emphasize the importance of securing humanitarian access and assistance and of protecting humanitarian personnel. Over the last two decades, sanctions regimes have developed to include language and provisions specifically intended to protect the humanitarian space from violations by parties to the conflict. Current conflict-related sanctions regimes include frequent and standardized language in both preambles and operative paragraphs that reflect the specific rules of IHL related to humanitarian activities and humanitarian personnel.Footnote ¹⁶

Third and finally, these references to IHL in general, and humanitarian access, assistance and personnel in particular, are translated into action through two designation criteria. These criteria provide the basis on which the Security Council can act to prevent or put a stop to abuses of and impediments to humanitarian relief. Eight of the conflict-related sanctions regimes include a general designation criterion of “violations of IHL”.Footnote ¹⁷ Thus, cases of obstruction of access, diversion of aid or attacks on personnel could be sanctioned on this basis when demonstrated by the relevant panel or group of experts to amount to a violation of IHL. Moreover, six of the conflict-related sanctions regimes also include a stand-alone designation criterion based on the obstruction of humanitarian access, impediments to the delivery or distribution of humanitarian assistance, and/or attacks against humanitarian personnel.Footnote ¹⁸ Thus, cases of obstruction or attacks could be sanctioned on that basis even when they do not amount to an IHL violation.

These three elements demonstrate that protection of humanitarian access, assistance and personnel against abuses and violations of IHL is integrated as part of the secondary objectives of conflict-related sanctions regimes. Thus, the primary goal of conflict-related regimes (conflict resolution) and the design of the sanctions measures adopted in pursuit of that goal are assumed, by some, to be complementary and compatible with IHL and the humanitarian space.

Comparing contexts: Fundamental differences with the CT sphere

Only one of the current fourteen UN sanctions regimes has as its primary objective the countering of terrorism. IDAQ is the only “pure” CT regime. It was adopted in 2011, following a split between what was once a single UN sanctions regime covering both the Taliban and Al-Qaeda. The Security Council split the regime to signal to the Taliban the possibility of reconciling through selected de-listing from the 1988 sanctions regime, which was redesigned to focus primarily on resolution of the conflict within Afghanistan. By contrast, the new CT regime – which initially focused on Al-Qaeda and its associates – had as its goal not reconciliation, conflict resolution or bringing members of Al-Qaeda “in from the cold”; rather, it only aimed to contain terrorist activities, making it more difficult for Al-Qaeda to fund initiatives, travel, and procure weapons.Footnote ¹⁹ The IDAQ regime applies globally – i.e., everywhere that Al-Qaeda, ISIL or the groups and individuals listed as their affiliates operate. However, while the regime overlaps with situations of international and non-international armed conflict in which ISIL, Al-Qaeda or their affiliates might be parties to the conflict – such as Syria, Iraq and Afghanistan, Mali, Libya, Somalia and Yemen – it is not meant to address them, and only focuses on the deterrence and constraint of the terrorist-affiliated groups.Footnote ²⁰ As described by Biersteker, Van Den Herik and Brubaker, “listings of groups” in the IDAQ regime, in contrast to the conflict-related regimes focusing on conflict resolution,

On the other hand, the most common type of contextual setting for UN sanctions is situations of armed conflict, which the sanctions are designed to address. Currently, there are ten conflict-related sanctions cases pertaining to situations in Somalia, the Democratic Republic of the Congo (DRC), Yemen, Mali, Sudan, South Sudan, the Central African Republic (CAR), Libya, Iraq (formal occupation regime), and Afghanistan. Six out of ten cases (Iraq, Libya, Mali, Somalia, Afghanistan and Yemen) possess significant CT dimensions, either because of the global application of the IDAQ sanctions regime on top of the armed conflict regime or because of the application of parallel regional or unilateral CT sanctions. The four remaining conflict-related regimes (CAR, DRC, South Sudan and Sudan) are either “pure” armed conflict cases or have minor CT elements. Contrary to the singular IDAQ regime, in these ten cases sanctions are deployed as leverage towards settlement of the conflict.Footnote ²² In other words, the primary purpose of these sanctions regimes remains resolution of a conflict through a negotiated settlement, not the deterrence of terrorist-affiliated groups.Footnote ²³ As a result, sanctions are imposed on key political and military actors involved in the armed conflict, in order to constrain their activity or to nudge them towards cooperation with an ongoing peace or reconciliation process.Footnote ²⁴ Individuals and groups are listed on the basis of both their status and their conduct.Footnote ²⁵

This fundamental difference in the underlying purposes of sanctions regimes in the CT and the conflict-related spheres might impact States’ interpretation, and hence their implementation, of sanctions. In particular, there might not be the same level of severity and scrutiny on engaging with listed non-State armed groups in the conflict-related sphere as there is in the CT sphere. This relatively diminished focus extends to concerns over the risks of diversion of humanitarian aid. For example, looting, stealing, diversion and abuse of humanitarian aid by non-State actors, including listed armed groups and individuals, have been reported over the years by the panels of experts for the majority of conflict-related regimes. Yet, such actions were never directly reported by the Monitoring Team in the IDAQ regime – even though the IDAQ regime strongly emphasizes aid diversion and abuse as a potential source of financing of terrorist-affiliated groups and individuals, while the majority of the other conflict-related regimes condemn aid diversion and abuse by listed armed groups as one of a number of actions hindering the delivery of humanitarian relief to populations in need.Footnote ²⁶ Moreover, the IDAQ regime emphasizes the need for States to adopt a risk-averse approach and refers heavily to the Financial Action Task Force's (FATF) recommendations regarding “the risk of abuse of non-profit organizations by terrorist groups and networks”.Footnote ²⁷ By contrast, FATF recommendations do not apply to the same extent in conflict-related sanctions regimes. This may give the impression that financial sanctions applied in conflict-related regimes without CT components may not need to be subjected to an equally rigorous review, especially regarding the risks of abuse of humanitarian aid.

A final significant difference between the armed conflict sphere and the CT sphere may lead to different research results. The single UN CT sanctions regime is part of a larger political and legal CT framework developed by the UN Security Council over the years under Chapter VII of the UN Charter. This framework imposes general and abstract rules binding on all UN member States, a trend which started with Resolution 1373. In particular, through this framework, Resolutions 1373 and 2462 impose obligations on States to criminalize the financing of terrorism in domestic orders, which includes violations of the sanctions measures imposed in the IDAQ regime.Footnote ²⁸ By contrast, in the conflict-related sanctions regimes, States have the discretion to decide the type of penalty to institute in relation to national actors’ non-compliance with UN sanctions. As a result, States may be less severe regarding violations of UN sanctions in the conflict-related regimes than in the CT context, with potential repercussions on private actors’ approach to risk when working with humanitarian actors in both spheres.Footnote ²⁹ In summary, all these distinctions can foster different interpretations and implementation practices in conflict-related regimes. Conflict-related sanctions regimes may thus bear less risks for humanitarian action than the 1267 regime – at least in appearance.

Increasing overlap with the CT sphere

While it is important to appreciate general differences between the conflict-related and CT spheres, in an increasing number of cases, these spheres overlap.

First, it is important to remember that the sanctions measures are the same across both conflict-related regimes and the CT regime. What ultimately varies is how the scope of these sanctions measures is interpreted by Security Council members as well as implementing member States. This can be particularly problematic for the implementation of assets freeze measures, which require that funds, financial assets or economic resources are prevented from being made available, directly or indirectly, to or for the benefit of designated entities. Although the interpretation of the assets freeze in the contexts of conflict regimes is assumed to be less widely enforced as in the IDAQ regime, there is nothing that prevents a shift to a stricter position in conflict-related regimes. In the absence of any specific humanitarian carve-out or guidance, this prohibition can be interpreted as encompassing the typical activities of impartial humanitarian actors. Such activities might include the delivery of large quantities of assistance items diverted by a listed entity, or the handover of water, sanitation and habitation infrastructures, or even the provision of humanitarian assistance or services to designated entities, including notably the provision of medical care to wounded and sick members of designated groups.

Second, from Somalia to Mali and from Yemen to Afghanistan, the application of UN sanctions has increasingly turned to both conflict mitigation and countering terrorism. In some of these contexts, the Security Council has updated the design of its sanctions regimes to address this overlap. For example, affiliation to groups designated under the IDAQ regime is mentioned in the 2374 (Mali), 751 (Somalia) and 1970 (Libya) sanctions regimes, as an additional basis for the listing of several individuals and entities. Currently Al-Shabaab is listed under the 751 sanctions regime, a regime with a standing humanitarian exemption and a primary focus on conflict resolution rather than on CT. However, Kenya has been pushing for the addition of Al-Shabaab to the 1267 CT list, which would in turn jeopardize the application of the standing humanitarian exemption for humanitarian actors operating in areas under the control of the group. Furthermore, States are encouraged to list individuals and entities supporting ISIL or Al-Qaeda operating in Mali and Libya. In one instance, an individual was re-listed on the Somalia list after being de-listed from the IDAQ list. In addition, the groups of experts affiliated with these regimes and the CT regime conducted joint analyses upon recognizing that threats and financing schemes apparent in the analysis of ISIL or Al-Qaeda may also be relevant to investigations on the financing of the arms trade, armed groups, or human trafficking.

Most importantly, the Security Council's increasing imposition of a CT framework in armed conflict settings has been shown to create challenges for humanitarian action. One of these challenges pertains to the fungibility approach, predominant in the CT context, which might overflow into the design and implementation of conflict regimes. In the other cases, the design of the regimes has remained out of step with the way the sanctions are being used. As a result, the humanitarian space is being limited in these contexts, in large part due to the transfer of CT goals into an armed conflict context, without the subsequent transfer of the humanitarian safeguards that now exist in the primary CT regime.

Lack of adequate IHL safeguards against the deleterious effects of sanctions themselves within conflict-related regimes

Considering the seeping of CT objectives into conflict-related regimes, there may be problems for humanitarian action despite an apparent alignment. Indeed, while IHL and humanitarian action are relevant to the design of sanctions regimes imposed in conflict contexts, they remain peripheral issues, and are not the core purpose of what the sanctions regimes are about. Thus, there is always a risk that the measures adopted to reach the objectives of conflict-related regimes run counter the rules of IHL and the humanitarian space. Most importantly, the conflict-related sanctions regimes only explicitly focus on the IHL obligations of the parties to the conflict to support humanitarian access and fail to mention the obligations of third-party member States to comply with IHL when implementing sanctions.

Indeed, the majority of conflict-related sanctions regimes fail to contain any language requesting member States to comply with IHL when implementing sanctions measures. To be clear, although conflict-related regimes do include language protecting humanitarian action from interference by the parties to the conflict, these same regimes generally do not contain language protecting humanitarian actors who engage and conduct activities with listed individuals and non-State armed groups, nor do they contain language protecting humanitarian action from interference by third States. This lapsus may lead States to prioritize their sanctions obligations over their IHL obligations when these appear to conflict with each other. By contrast, this language now exists in the IDAQ sanctions regime following the adoption of Security Council Resolution 2462.

This lack in the conflict-related regimes is problematic, as most of the negative effects of sanctions on humanitarian actors may be secondary or tertiary and can arise at the level of sanctions implementation by member States – at least from what has been witnessed in the CT sphere. Moreover, in contrast to the IDAQ regime, which now protects “humanitarian activities” since the adoption of Resolution 2462, language in the conflict-related regimes is limited to humanitarian activities of “assistance”, thus failing to include formally and explicitly “protection” activities. It remains to be explained why this language is restricted to “assistance” activities, and an exploration of the potential implications on the ground is needed.Footnote ³¹ However, risks for impartial humanitarian organizations are particularly important when sanctions are imposed against an armed group controlling territory rather than individual actors viewed as obstructing a peace process. Narrow and broad sanctions exist both in the CT and conflict spheres. Lack of proper language to protect humanitarian organizations engaging with armed groups holding territory, such as in the DRC and Somalia, might be problematic. Thus, the existing elements of protection described above may not be sufficient on their own to fully cover and protect humanitarian actors and their activities from the potential negative effects of UN sanctions.

The fact that sanctions regimes must comply with IHL is clearly expressed only in a few conflict-related sanctions regimes, namely the 1988 regime, Somalia, Libya, Yemen, and since very recently, the DRC. The language adopted in the DRC regime drastically departs from the other regimes and is worth noting, as the Security Council demands in Resolution 2582 that “States ensure that all measures taken by them to implement this resolution comply with their obligations under international law, including international humanitarian law, international human rights law and international refugee law, as applicable”.Footnote ³² Moreover, the Council has stressed that “the measures imposed by this resolution are not intended to have adverse humanitarian consequences for the civilian population of the DRC”.Footnote ³³ This language demonstrates some awareness of the challenges evident in applying sanctions in armed conflict contexts.

Terminology

In the research conducted thus far, common language often remains elusive, leading at times to critical misunderstandings between the CT and sanctions field, on the one hand, and the sanctions and IHL field, on the other. Six terminological issues warrant particular attention:

1. 1. First, future research endeavours should aim to distinguish between instances of “direct” or “primary” impact and “indirect” or “secondary” impact. While the effects on humanitarian action may be similar, the plan for mitigating impact varies considerably, as does the political coalition needed to push for change.

2. 2. Second, within the sanctions literature there is common reference to the term “unintended consequences”. This term is used to refer to the type of effects described in this paper. Just as a closer look at the meaning and type of “impact” would help clarify the meaning of “consequences”, a more studied look at the intentions of designers and implementers would help shine more light on what has otherwise been a long ignored or perhaps overly simplified description of the phenomenon under study.

3. 3. Third, there is a critical issue of terminology around the use and meaning of the terms “exemption” and “exception”.Footnote ³⁴ The UN uses the terms as they are employed in this paper; by contrast, at the EU level, the meaning of the terms is reversed. In a similar vein, the Interlaken Manual on Targeted Financial Sanctions follows a similar approach to the EU.Footnote ³⁵ As a result, there is a general confusion of terms both within the sanctions community and amongst humanitarian practitioners. This terminological confusion has led to a tendency for past work either to mistakenly concur on points of divergence or to seek consensus where no real differences exist. Thus, there is a pressing need for future research to look for conditions which would help to generate consensus and propose a standard definition for these terms so that new work both within and across the two fields can speak from a common foundation of understanding.Footnote ³⁶

4. 4. Fourth, there is general confusion and lack of terminological clarity on the meaning of “impact”. To begin with, there is a need to distinguish more systematically between three types of impact: (1) the impact on the affected population, (2) the impact on humanitarian activities, and (3) the impact on the impartial and humanitarian character of the humanitarian sector. Within category (2), the impact on humanitarian activities, there is also a need to parse the effects on humanitarian access, on the one hand, and on humanitarian activities of assistance and protection, on the other. Such a studied distinction in future work would help better ground arguments for further adjustments in existing international legal frameworks.

5. 5. Fifth, and similarly, future research would do well to clarify the origins and importance of the terms “impartial” and “neutral” in descriptions of humanitarian organizations, when discussing appropriate derogations and safeguards. Most individuals in the sanctions community will not be familiar with the debates around these terms. As a result, they are less likely to appreciate the potential impact that their measures may have either in support of or in contravention to these fundamental concepts. Rather, sanctions experts and practitioners are more accustomed to considering humanitarian actors as one uniform category.

6. 6. Finally, amongst the community of sanctions implementers, on the one hand, and government regulators, on the other, there is a persistent terminological and conceptual debate at the heart of discussions around compliance, as well as a lack of understanding regarding the operational realities faced by humanitarian organizations. This debate centres around the question of whether there is such a thing as zero risk, and if not, what an acceptable level of risk tolerance should look like. This debate is key to any future research on potential measures for mitigating the impact of sanctions due to overcompliance and de-risking. Further terminological clarity would assist in building consensus around currently divergent approaches to risk and conceptions of acceptable risk.

Substantive areas for further research

Foremost on any future research agenda should be the primary and secondary impacts of the remaining thirteen sanctions regimes on humanitarian action, given how substantially these regimes differ from the single CT sanctions regime. However, such an analysis should look for both negative and positive impacts rather than presume one or the other. There is an under-researched element of sanctions regimes which sees them as one source of deterrence in efforts to uphold IHL and protect the humanitarian space. Accordingly, there is a need for a dual-pronged research agenda, with one prong that looks for a potential negative impact of sanctions measures on humanitarian action and one that looks for potential positive impacts. Both prongs will have to treat the issue of impact carefully, as described above, given previous findings that secondary impacts, which are less directly attributable to sanctions measures, can have more noticeable effects. As part of this dual research endeavour, researchers should identify and recommend measures that could mitigate negative impacts and amplify positive impacts identified at the sanctions design, interpretation, application and adjustment stages.

An additional area of investigation that is ripe for further research is the extent to which States can and must take IHL into account when implementing UN sanctions in armed conflict settings. Studying implementation remains an ongoing challenge, however, given the variety of approaches amongst the 193 members of the UN as well as the complexity of the intergovernmental process that is often involved in implementation. Short of a comprehensive analysis of State implementation, policy actors may still benefit if future research identifies best practices from select States, such as those which have managed to apply UN sanctions measures effectively while remaining in compliance with their IHL obligations.

Methodological challenges

Future research will have to take into consideration and look to surmount certain key methodological challenges. Some of these challenges are simply inherent to this field of study. Paramount amongst these is the debate around how to most accurately and efficiently measure impact. This challenge can largely be divided into two subsequent hurdles: sourcing and validating information, and establishing a causal chain.

On the first point, previous studies have relied on self-reporting by humanitarian actors, and this in turn has resulted in criticism from sanctions experts, sanctions architects and government stakeholders, who point both to the self-reporting bias and to the lack of concrete details supplied to back up anecdotal evidence.Footnote ³⁷ Many humanitarian actors have asserted that detailed reporting is impossible given the confidentiality inherent in their work. In some cases, humanitarian actors may simply lack information and knowledge regarding the often complex, and sometimes rather opaque, UN sanctions regimes. Moreover, humanitarian actors may be wary of providing information or analysis that could subject them to greater scrutiny or potentially even legal action. Previous research efforts have cited challenges in reporting due to practitioners’ wariness of admitting to conduct that, while covered by IHL, may nevertheless be interpreted by some States as prohibited under an existing UN sanctions regime. This, therefore, precludes cross-sectional studies on a sufficiently large scale.Footnote ³⁸ An entity trusted by both communities could consider engaging in such a project in the future, given adequate resources and access, while noting that it may be extremely difficult to effectively undertake such an initiative in light of prevailing circumstances.Footnote ³⁹

The second challenge exists in attempting to establish a causal link between a policy intervention and an outcome. This is a challenge that has plagued many fields of applied research. It is particularly fraught in the realm of sanctions given the myriad factors influencing the outcomes in question – restricted access, diminished assistance and hampered protection activities, to name a few. One current study is looking precisely at the challenge of establishing a casual chain between the application of CT measures writ large and the impact on humanitarian action.Footnote ⁴⁰ There is also an inherent difficulty in isolating UN sanctions measures from other regional and unilateral sanctions. In addition, the relatively limited scope of certain sanctions regimes and the limited number of designations in others may also make it difficult to obtain a general overview of impact.Footnote ⁴¹ As a result of these various factors, there is a significant gap in understanding of the interplay between UN sanctions and humanitarian action in armed conflict contexts beyond the realm of the CT sphere.

One could consider an alternative approach that looks to use counterfactuals to gauge impact, as has been much explored in the area of conflict prevention.Footnote ⁴² Looking for the impact of a non-event has the advantage of simplifying contextual factors and better isolating a policy contribution. In this setting, rather than looking at the most severe instances of impeded access or diminished assistance, one could instead look at cases where UN sanctions coexist with humanitarian activities and seek to understand what enables them to coexist productively. Any such study will, of course, have to account for situational differences, such as the scope of the existing UN sanctions, the presence of additional non-UN sanctions, the degree of stigmatization of the actors involved, and the existence of additional measures such as UN peace operations or foreign military occupation. Lastly, the counterfactual approach could also be used to examine instances of best practice when it comes to the degree of compliance with IHL rules regulating humanitarian access and activities.