This section aims to provide a 30,000-ft. view of the key areas of convergence and, especially, divergence between state responses to the threat posed by foreign terrorist fighters, on one hand, and state support of principled humanitarian action in counterterrorism contexts, on the other.
Simultaneously Converging and Diverging Normative and Operational Frameworks
Since the late 1990s, states and international bodies have increasingly adopted laws and policies to respond to threats posed by al-Qaeda and other non-state actors designated as terrorists. At the same time, humanitarian crises where designated terrorists control territory and access to civilians have demonstrated the continued need for effective life-saving relief.[1] While counterterrorism policies and humanitarian action may, from some perspectives, share several goals in principle, they intersect in ways that may also result in sharp tensions or even in direct conflict.
Security Council Responses to Terrorism
Terrorism has been a matter of international concern at least since the 1930s.[2] Since the 1960s, States have agreed to numerous anti-terrorism conventions, at the international and regional levels. And, more recently, courts have addressed customary international law concerning transnational terrorism. But the last decade and a half has witnessed a surge in counterterrorism policies and programming at the international level. The U.N. Security Council is one of the key drivers of these initiatives. In the years immediately prior to, but especially in the aftermath of, the attacks of September 11, 2001, the Council took action to protect states and to deter and punish terrorist acts.
Two clusters of Security Council decisions, in particular, require states to address the threat to international peace and security posed by terrorism. The first cluster originated in 1999 in Security Council Resolution 1267.[3] That line of resolutions requires states to (among other things) take steps to impose a travel ban, an asset freeze, and an arms embargo on al-Qaeda and associated individuals and groups. In the second, sometimes overlapping, cluster of decisions, which originated in Resolution 1368 in 2001, the Security Council “legislated” a global net of counterterrorism interdiction.[4] In general, this second cluster requires member states to develop laws and measures to improve their ability to prevent terrorist acts. For instance, these resolutions require member states to:
- Criminalize certain acts associated with terrorism;
- Freeze funds of individuals involved in terrorist acts;
- Cooperate with other states to share information that could prevent terrorist acts from occurring; and
- Prescribe criminal penalties for committing terrorist acts.[5]
Following the buildup of these resolutions, in 2014 the Security Council homed in on a newly framed threat: foreign terrorist fighters.
What brought about the focus on foreign terrorist fighters last year? According to President Obama, the “unprecedented flow of foreign fighters in recent years to and from conflict zones”[6] provided the impetus for Resolution 2178. Passed pursuant to the Council’s Chapter VII powers under the U.N. Charter, member states are obliged to carry out the decisions entailed in the resolution.[7] In general, the resolution requires states to implement new, or enforce existing, laws and policies to suppress the flow of FTFs into areas like Syria and Iraq. At the associated High-Level Summit, state after state aligned themselves and their constituencies with the goals of the resolution.[8]
By design, state responses to the threat posed by FTFs are multi-dimensional. U.N. Secretary General Ban Ki-Moon has noted that the “dynamic evolution of terrorist threats” requires a “creative and comprehensive approach […] to stem the flow of foreign fighters […].”[9] Guided by the notion that “good governance kills terrorism,”[10] the resolution requires member states to place restrictions on the travel of FTFs and to increase efforts to prevent and deter individuals from becoming FTFs. The resolution also emphasizes increased cooperation between states to share information and to build capacity to address the issue of FTFs, and to prosecute and to “bring to justice” individuals that support, fund, plan, or perpetrate terrorist acts.[11]
Despite being passed only a year ago, Resolution 2178 already appears to be on a trajectory to have an enduring impact. The resolution requires member states to implement measures that reinforce—as well as go beyond—the obligations in earlier counterterrorism decisions.
Looming in the background of Resolution 2178 is the concern that people faraway from conflict zones may be inspired by the efforts of FTFs to carry out attacks in their home countries.[12] In short, the underlying impetus for Resolution 2178 is the notion that FTFs pose a threat to everyone, everywhere. And, indeed, the High-Level Summit in 2014 made clear that states agree that FTFs pose a pressing threat to international peace and security.
Supporting Principled Humanitarian Action
More than half a century before the initial rise of terrorism as a matter of international concern, states agreed—in international law—to inject protections for humanitarian measures into the cruelty of war.[13] The initial manifestation of those efforts was the in legal protection for impartial wartime medical care. As early as 1864, states agreed in an international humanitarian law (IHL)[14] convention to treat wounded and sick combatants irrespective of nationality—and even to allow the civilian population to provide such care.
In the intervening 150-plus years, states have expanded the scope of legally enshrined humanitarian activities in armed conflict. Today, many states have also put support of principled humanitarian action—through normative commitments, financial contributions, and other channels—at the forefront of their foreign policy platforms. States also regularly endorse the importance of ensuring the safety and effectiveness of relief actions.
Discerning the technical scope of IHL humanitarian-assistance provisions applicable to a particular conflict may be quite complicated. It typically requires an assessment of applicable treaty provisions and rules of customary IHL. But the upshot is that states have agreed to numerous protections for principled humanitarian action in situations of armed conflict.[15] Perhaps most fundamentally, under IHL a genuine offer of impartial humanitarian assistance—by another state or by a principled humanitarian organization—may not be considered an unfriendly act.[16]
Of course, as with so many other elements of IHL, states devised the specific protections concerning relief schemes by balancing humanitarian concerns alongside considerations of military necessity.[17] For instance, some IHL treaties stipulate that humanitarian actors must comport with certain principles—such as impartiality—in order to benefit from these particular protections.[18] (In general, under IHL in situations of armed conflict humanitarian relief personnel are accorded the status of civilians, so long as they do not forfeit that status by, for instance, taking a direct part in hostilities.)
Against the development of this normative background, today, as practical matter, four principles—humanity, impartiality, neutrality, and independence—often define what is considered to constitute “principled humanitarian action.”[19] These principles aim foremost to help enable humanitarian aid and assistance to reach intended beneficiaries. Those beneficiaries are principally the members of the civilian population in need of assistance as well as those not, or no longer, participating in hostilities. In theory, though not always in practice, these principles serve to facilitate the work of and protect humanitarian actors.
Despite adherence to these principles, however, certain conditions may adversely affect the ability of humanitarian organizations to successfully negotiate access to, to provide assistance to, and to help protect intended beneficiaries. For instance, humanitarian organizations may be perceived as politically motivated or representing foreign interests, which may cause states or non-state armed groups in control of territory to deny access to those organizations. Further, counterterrorism laws may impose additional obligations on humanitarian actors, such as relatively more onerous due-diligence requirements including vetting of local partners.
Intersections: State Responses to Terrorism and Supporting Principled Humanitarian Action in Counterterrorism Contexts
Seen in one light, counterterrorism policies and principled humanitarian action may be thought to share several goals. In principle, they both aim, for instance, to protect civilians from the often-devastating effects of war and to ensure that life-saving assistance reaches intended beneficiaries.
Tensions have emerged, however, between state approaches to these two areas. These tensions are often sharpest for humanitarian actors operating in territories controlled by terrorist groups. In recent years, designated terrorists have controlled territory (and thus access to civilians) in armed conflicts in, for instance, Afghanistan, Gaza, Iraq, Libya, Mali, Nepal, Pakistan, the Philippines, Somalia, Syria, and Yemen.
Some states’ domestic counterterrorism legislation casts humanitarian aid and assistance—including the steps preparatory to providing such assistance, such as paying fees to de facto authorities designated as terrorists—as impermissible forms of support to the enemy.[20] Furthermore, it is relatively rare for states to expressly exempt from counterterrorism laws principled humanitarian action. And where such exemptions do exist, they may be quite limited. In certain contexts, states may be concerned that humanitarian activities could serve as conduits for potential terrorist activity, through acts like the provision of funds or supplies. Similarly, such humanitarian organizations may be perceived—despite certain nascent evidence to the contrary[21]—as having weak internal mechanisms to assess and respond to risks posed by operations in volatile areas where terrorist groups remain active. The work of the Financial Action Task Force and other intergovernmental bodies may have exacerbated these perceptions, particularly in identifying the non-profit sector as especially vulnerable to terrorist abuse.[22]
These concerns may make donors to humanitarian organizations, including states and intergovernmental organizations, reticent to provide funds to humanitarian organizations operating in areas where terrorist groups control territory. That reticence can thwart the efforts of humanitarian organizations to operate in high-risk environments, even though these environments often contain civilians that desperately need assistance.
To develop more knowledge about and to raise awareness of the tensions between state responses to terrorism and principled humanitarian action, donors have funded major studies and events, as well as various forms of dialogue—both between individual donors and humanitarian actors and by bringing together multiple donors and humanitarian actors.[23] Donors have also supported a number of related key initiatives (including our own: the Counterterrorism and Humanitarian Engagement Project at Harvard Law School) that further attempt to bridge the humanitarian and security spheres in these areas.
A number of common themes emerge from existing research. Counterterrorism measures may contribute to heightened due diligence requirements on humanitarian organizations as well as additional restrictions on their travel. Greater governmental scrutiny of national and regional staff of humanitarian organizations may arise out of counterterrorism concerns, too. Anti-terrorism policies may contribute to decreased access to financial services and funding for humanitarian organizations, including as a result of financial institutions’ de-risking due to counterterrorism-related concerns. Without sufficient legal protections built into counterterrorism measures, humanitarian organizations may choose to cease operations in areas where civilian populations need assistance. This reportedly occurred, for example, in the humanitarian community’s response to the famine in Somalia and the complications posed by the dominance of al-Shabaab, a listed terrorist organization that controlled large amounts of territory in Somalia.[24]
In 2011, amid rising concern, the International Committee of the Red Cross (ICRC) pinpointed an array of fundamental challenges that state responses to terrorism may pose to principled humanitarian action:
The prohibition in criminal legislation of unqualified acts of ‘material support’, ‘services’ and ‘assistance to’ or ‘association with’ terrorist organizations could thus in practice result in the criminalization of the core activities of humanitarian organizations and their personnel aimed at meeting the needs of victims of armed conflicts and situations of violence below that threshold. These could include: visits and material assistance to detainees suspected of or condemned for being members of a terrorist organization; facilitation of family visits to such detainees; first aid training; war surgery seminars; IHL dissemination to members of armed opposition groups included in terrorist lists; assistance to provide for the basic needs of the civilian population in areas controlled by armed groups associated with terrorism; and large-scale assistance activities to internally displaced persons, where individuals associated with terrorism may be among the beneficiaries.[25]
These and other concerns led the ICRC to call on states to (among other things) “exclude from the ambit of such offences activities that are exclusively humanitarian and impartial in character and are conducted without adverse distinction” when crafting legislation creating criminal offenses of “material support,” “services” and “assistance” to or “association" with persons or entities involved in terrorism.[26]
Given the awareness of the risks of counterterrorism laws and regulations to humanitarian action by the time Resolution 2178 was passed, one might have expected the Security Council and states to incorporate explicit and specific protections for humanitarian action, or to reaffirm expressly their commitment to humanitarian action in areas controlled by listed entities. This did not occur in Resolution 2178. One reason might be that those involved in crafting the resolution and those on the counterterrorism portfolios were not involved in the same discussions as those from the humanitarian or aid divisions. The Security Council did, however, expressly require that U.N. member states prevent and suppress the recruiting, organizing, transporting, or equipping of FTFs consistent with IHL.[27] In doing so, the Council implicitly required states to discharge their FTF obligations in a manner that respects the various forms of humanitarian action protected by IHL. The Security Council did not, however, expressly require that states discharge each of the other key FTF obligations entailed in the resolution consistent with IHL.
[1] See, e.g., Mohammed Hussein, Humanitarian Crisis of Immense Magnitude Looms in Yemen, Al-Jazeera (April 25, 2015).
[2] This paragraph and the subsequent paragraph are based on the analysis and citations drawn from Dustin A. Lewis, Naz K. Modirzadeh, and Gabriella Blum, “Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism,” Legal Briefing, Harvard Law School Program on International Law and Armed Conflict, September 2015, pp. 100–2, available at: http://pilac.law.harvard.edu/mcac.
[3] S.C. Res. 1267, U.N. Doc. S/RES/1267 (Oct. 15, 1999).
[4] See, e.g., Paul C. Szasz, “The Security Council Starts Legislating,” 96 AJIL 901 (2002).
[5] S.C. Res. 1368, U.N. Doc. S/RES/1368 (Sept. 12, 2001).
[6] Remarks of President Barack Obama, U.N. SCOR, 7272 mtg. at 3, U.N. Doc. S/PV.7272 (Sept. 24, 2014).
[7] U.N. Charter, arts. 25, 39, and 48.
[8] See U.N. SCOR, 7272 mtg., U.N. Doc. S/PV.7272 (Sept. 24, 2014).
[9] U.N. SCOR, 7272 mtg. at 2-3, U.N. Doc. S/PV.7272 (Sept. 24, 2014).
[10] Id. at 3.
[11] S.C. Res. 2178, paras. 2, 6, 8 and 11, U.N. Doc. S/RES/2178 (Sept. 24, 2014).
[12] See Remarks of President Barack Obama, U.N. SCOR, 7272 mtg. at 4, U.N. Doc. S/PV.7272 (Sept. 24, 2014).
[13] This paragraph is based on the analysis and citations drawn from Dustin A. Lewis, Naz K. Modirzadeh, and Gabriella Blum, “Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism,” Legal Briefing, Harvard Law School Program on International Law and Armed Conflict, September 2015, pp. 38–56, available at: http://pilac.law.harvard.edu/mcac.
[14] The International Committee of the Red Cross succinctly defines international humanitarian law (IHL) as “[a] set of international legal rules that seek to limit the effects of armed conflict. It protects people who are not or are no longer participating in hostilities and restricts the means and methods of warfare.”[14] International Committee of the Red Cross, https://www.icrc.org/en/war-and-law. IHL applies only in relation to situations of armed conflict as defined in international law.
[15] See, e.g., Heike Spieker, “The Right to Give and Receive Humanitarian Assistance,” in International Law and Humanitarian Assistance 7–31 (H.-J. Heintze and A. Zwitter eds., 2011); Felix Schwendimann, “The legal framework of humanitarian access in armed conflict,” 93 IRRC 884 (2011) 1007–1008.
[16] See, e.g., article 70(1) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 (AP I); Emanuela-Chiara Gillard, “The law regulating cross-border relief operations,” 95 IRRC 890 (2013) 364.
[17] On the more general point, see, e.g., Michael N. Schmitt, “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance,” 50 VJIL 4 (2010). On the more specific point concerning conditions of humanitarian access and assistance, see, e.g., Felix Schwendimann, “The legal framework of humanitarian access in armed conflict,” 93 IRRC 884 (2011) 997–1002.
[18] See, e.g., articles 3(2) Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 75 U.N.T.S. 31 (GC I), 3(2) Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, 75 U.N.T.S. 85 (GC II), 3(2) Convention (III) Relative to the Treatment of Prisoners of War, August 12, 1949, 75 U.N.T.S. 135 (GC III), 3(2) Convention (IV) Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 75 U.N.T.S. 287 (GC IV), 69(2) and 71 AP I, and 18(2) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 (AP II).
[19] See, e.g., UN OCHA on Message: Humanitarian Principles, https://docs.unocha.org/sites/dms/Documents/OOM-humanitarianprinciples_eng_June12.pdf.
[20] For instance, the United States criminalizes material support for terrorism, to include a broad range of activities and supplies, such as funding, lodging, “expert advice or assistance,” and personnel, but exempts only the provision of medicine and religious materials. See 18 U.S.C. 2339A and B.
[21] See Counterterrorism and Humanitarian Engagement Project, “An Analysis of Contemporary Anti-Diversion Policies and Practices of Humanitarian Organizations,” Research and Policy Report, Harvard Law School, May 2014.
[22] Financial Action Task Force, Best Practice on Combating the Abuse of Non-Profit Organizations (Recommendation 8), http://www.fatf-gafi.org/topics/fatfrecommendations/documents/bpp-combating-abuse-npo.html. But see Financial Action Task Force, Combating the Abuse of Non-Profit Organizations (Recommendation 8) (June 2015) 4-7 (recognizing the “vital importance” of nonprofit organizations “in providing charitable services throughout the world” and qualifying the recommendation by noting that not all organizations are “high-risk”).
[23] See, e.g., Kate Mackintosh & Patrick Duplat, Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action, OCHA and the NRC (July 2013); Counterterrorism and Humanitarian Engagement Project, “An Analysis of Contemporary Anti-Diversion Policies and Practices of Humanitarian Organizations,” Research and Policy Report, Harvard Law School, May 2014; Counterterrorism and Humanitarian Engagement Project, “An Analysis of Contemporary Counterterrorism-related Clauses in Humanitarian Grant and Partnership Agreement Contracts,” Research and Policy Report, Harvard Law School, May 2014.
[24] See, e.g., Laura Hammond & Hannah Vaughan-Lee, Humanitarian Space in Somalia: A Scare Commodity, Humanitarian Policy Group Working Paper (April 2012).
[25] International Committee of the Red Cross, International Humanitarian Law and the challenges of contemporary armed conflicts, doc. 31IC/11/5.1.2, October 2011, Geneva, p. 52 [emphasis added].
[26] Id. at 53.
[27] S.C. Res. 2178, para. 5, U.N. Doc. S/RES/2178 (Sept. 24, 2014).
