WORLDVIEWS

Saving the Space for Humanitarian Action in Counterterrorism Strategies

In Aleppo, another victim in the Syrian war, led by President Bashar al-Assad against his own people since March 2011. The UN Security Council recently passed a resolution that ensures that countries’ counterterrorism measures comply with their obligations under international humanitarian law, ensuring stronger protection of aid groups and their work. 

The United Nations Security Council just passed yet another resolution on counterterrorism, this one enunciating the steps that UN member states must take to further constrain terrorist groups’ access to financial and economic resources. Resolution 2462 follows a series of resolutions, dating from 1999, on terrorist threats to international peace and security.

This resolution, drafted by France, is remarkable in two aspects, from the point of view of humanitarian organizations and action. First, the Council “decides” that states should ensure criminalization of willful support in their domestic orders “in a manner consistent with their obligations under international humanitarian law”; and then re-affirms this as it “demands” that all member states ensure that “all measures taken to counter terrorism” comply with their obligations under international humanitarian law (IHL).

The Council often states that counterterrorism measures should comply with international humanitarian law, but these references mostly appear in the preamble of resolutions. For the first time, Resolution 2462 makes these express demands to consider and respect IHL in its operative paragraphs, and the language it uses makes it clearly obligatory for UN member states.

Second, the Council “urges” states to consider the potential effect of the counterterrorism measures they design and apply “on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors.”

In this regard, the resolution is good news for protecting the medical and other services of humanitarian organizations. International humanitarian law specifically allows impartial humanitarian groups to offer their services to parties to a noninternational armed conflict (conflicts involving nonstate armed groups) to benefit civilians and other protected people, whether or not any of the parties is a designated terrorist group.

Despite this express mandate under IHL, impartial humanitarian organizations have been suffering from the adverse consequences of UN counterterrorism sanctions and their translation in states’ domestic legislations. This new resolution clearly requires states to review and adapt their measures to comply with IHL and protect humanitarian action. If implemented adequately by states domestically, the resolution may well ease the delivery of principled humanitarian action that so far has been negatively affected by counterterrorism measures.

For the past 20 years or so, the Council has adopted Chapter VII resolutions prohibiting financing of and support to terrorist groups and translated these requirements in adopting sanctions regimes with broad assets-freeze measures and designation criteria.

In particular, the assets freeze of the ISIS, Al Qaeda and the Taliban sanctions regimes are drafted to ensure that no funds, financial assets or economic resources of any kind are available to any of the listed individuals or groups. In addition, the designation criteria of providing support encompasses obvious actions (e.g., providing arms and recruiting for their groups) but may implicate anyone who is “otherwise supporting” the groups or any of their cell, affiliate, splinter group or derivative.

The sanctions regimes are carried out by UN member states, and they must ensure domestically that their citizens or people in their territory do not directly or indirectly make an asset available to designated groups and individuals or support them in any other way. States have a sovereign right to determine what exactly is prohibited support. So far, most have adopted overly broad domestic provisions to prohibit and criminalize any engagement with or services to individuals and groups on UN sanctions lists.

Some countries have explicitly excluded humanitarian action from the scope of their domestic counterterrorism measures, but most do not. In addition, the Security Council has often emphasized its concerns about the risk of abuse of humanitarian aid by listed individuals and groups and never explicitly excluded humanitarian action from the scope of its sanctions measures — except for the Somali sanctions regime.


 

 

Legally, the mandate given by IHL to impartial humanitarian organizations, and the previous calls of the Council that counterterrorism measures should comply with IHL, inherently provided impartial humanitarian organizations with an implicit exemption from the scope of UN sanctions and related domestic laws and policies. In reality, the broad language of UN resolutions and countries’ domestic provisions have created the perception that they could implicate any type of action or service, including humanitarian organizations and their core activities.

Among other activities, medical care to wounded and sick combatants, visits and material assistance to detainees suspected of terrorism, IHL dissemination and training to members of armed groups designated as terrorists or even assistance and relief supplies to civilian populations in territories controlled by such groups can all be criminalized domestically. Moreover, there is a remote yet credible possibility that they could even lead to designations at the UN sanctions regimes level.

In turn, overcompliance with counterterrorism legislation (for example, by donors who fear accusations of material support to terrorism) has had a chilling effect on humanitarian action and necessitated adopting new, explicit language to save the space of humanitarian actors.

Resolution 2462 is an important step providing humanitarian organizations with a useful tool to defend their lifesaving work. The resolution shows consensus and clarity in upholding humanitarian principles and humanitarian law, and the language can now be used as a legal basis for discussion with states or other entities, whenever challenges arise from their implementation measures.

At a higher level, the resolution’s explicit language should also protect humanitarian-aid workers from the risk of being listed in a sanctions regime because of their activities.

Yet there is still a major recommendation to make for the future. To have a clear and consistent stance on protecting humanitarian action, the Council should use this resolution as steppingstone to include not only explicit humanitarian exemptions in the sanctions regimes dealing with counterterrorism (ISIS, Al Qaeda and the Taliban), but also across all other sanctions regimes dealing with noninternational armed conflict, even if they are not concerned with counterterrorism issues.

What is at stake is too important to stop the progress here.

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