Person:

Kapoor, Radhika

On December 9, 2022, the United Nations Security Council adopted resolution 2664 (2022), laying down a limited, standing humanitarian-related “carve-out” from Council-decided asset freezes. The resolution warrants close attention from U.N. Member States. That is not only due to the resolution’s consequential character. It is also because the core obligations arising from it are notably complex and raise correspondingly intricate issues concerning interpretation and implementation.

In this interpretive note for the Harvard Law School Program on International Law and Armed Conflict, Radhika Kapoor, Dustin Lewis, and Naz Modirzadeh seek to support U.N. Member States’ initial efforts to understand and implement certain key aspects of the resolution, especially the humanitarian-related “carve-out” at its center. As explained in the interpretive note, U.N. Member States bear principal responsibility for carrying out the legal mandate entailed in resolution 2664 (2022). Those States will, as a minimum, need to review and, as relevant, make adjustments to their national legal systems and any multi-State legal arrangements to which they belong, such as a regional organization. Further, members of the Security Council will need to evaluate the implications of the resolution with respect to each of the affected sanctions regimes and take the action warranted to address those implications. U.N. Member States may also take action to support those responsible for the briefings (the U.N. Emergency Relief Coordinator) and the report (the Secretary-General) requested by the Security Council.

States spend tens of billions of dollars each year to help implement humanitarian programs in conflicts across the world. Yet, in practice, counterterrorism objectives increasingly prevail over humanitarian concerns, often resulting in devastating effects for civilian populations in need of aid and protection in war. Not least, confusion and misapprehensions about the power and authority of States relative to the United Nations Security Council to set policy preferences and configure legal obligations contribute significantly to this trajectory.

In a new guide for States published by the Harvard Law School Program on International Law and Armed Conflict (HLS PILAC), Dustin A. Lewis, Radhika Kapoor, and Naz K. Modirzadeh argue that it is possible — and, they believe, urgently called for — to arrest this trajectory and safeguard principled humanitarian action. In their view, short-term and ad-hoc solutions are less likely to uphold the humanitarian imperative.

Instead, the authors present a framework for States to reconfigure the relations between these core commitments by deciding to assess the counterterrorism architecture through the lens of impartial humanitarianism. The authors also identify key questions that States may answer to help formulate and instantiate their values, policy commitments, and legal positions in order to advance the humanitarian imperative and uphold respect for principled humanitarian action in connection with carrying out the Security Council’s counterterrorism decisions.