Opportunities and Concerns for Principled Humanitarian Organizations
State responses to foreign terrorist fighter-related threats may ultimately sharpen existing concerns—or even pose new concerns—for principled humanitarian actors. However, it is not clear, at this early stage in the development of the “foreign terrorist fighter” concept, that state responses to the threat posed by FTFs necessarily will adversely affect principled humanitarian action. Both potential opportunities and concerns are on the horizon.
As noted above, the Security Council expressly required that U.N. member states prevent and suppress the recruiting, organizing, transporting, or equipping of FTFs consistent with IHL.[1] In doing so, the Council provided an explicit basis on which principled humanitarian actors can call upon states to ensure that measures aimed at preventing and suppressing FTFs do not impede humanitarian action protected under IHL.
Today, the overall political and operational environment for principled humanitarian action appears to marked by increasingly aggressive counterterrorism responses. It may well be that donor states, states in the region, and states with comparatively greater numbers of FTFs experience the FTF threat as presenting a different order of national security concern than does terrorism more generally. Perhaps particularly in light of recent ISIS developments, refugee influxes into Europe, and al-Qaeda calling for lone-perpetrator attacks in the West, state responses appear to be tipping increasingly towards national security. These changing political realities should inform how humanitarian organizations understand the potential for additional changes to the regulatory environment. In particular, on the horizon there are six areas humanitarian actors should be particularly aware of and engaged with.
Heightened administrative and programmatic burdens on humanitarian organizations in terms of their vetting and due diligence responsibilities
Humanitarian organizations may see new vetting and new approval requirements—adopted pursuant to frameworks implementing the FTF measures entailed in Resolution 2178—specifically related to areas controlled by ISIS. Donors may, for instance, begin to request new forms of project approval and new forms of oversight, such as by requiring pre-approval by the donor of each new partner.
Decreased freedom of movement of humanitarian personnel
To effectively pursue their objectives, humanitarian actors often need to be able to deploy quickly and move as efficiently as possible into and within conflict zones. FTF-related measures may subject humanitarian personnel to new or heightened restrictions on travel, visa issuances, and border-crossings.
Increased governmental scrutiny of national and regional staff
States with greater numbers of individuals allegedly traveling from their territory to become FTFs may be particularly sensitive to their nationals traveling to Iraq and Syria. At the same time, humanitarian staff from those states with more FTFs may be particularly crucial for effectively addressing humanitarian needs, perhaps especially in ISIS-controlled areas. Frameworks devised to implement anti-FTF measures may lead to an increase in intelligence-gathering activities in affected regions. But those measures may undermine humanitarian actors’ relationships with local communities and local partner organizations.
Decreased access to financial services and funding channels
Recently, there has been more research focusing on the financing of humanitarian action in relation to armed conflicts involving designated terrorists, including with respect to banks’ “de-risking” from such areas. As noted above, Resolution 2178 imposes an obligation on states to prevent the financing of FTFs in particular (building on earlier obligations to prevent funding of terrorism more generally). Against the backdrop of greater legal and regulatory scrutiny concerning FTF threats, banks and other financial institutions may become more reticent to provide financial services and to facilitate financial transactions concerning situations of armed conflict involving designated groups. Financial institutions may be particularly reticent to provide services for organizations working in territories (including currently parts of Iraq and Syria) controlled not just by listed groups but by groups that appear to be recruiting FTFs from around the world. Financial institutions may devise new mechanisms for reviewing and vetting activities in areas that are considered high risk from an FTF perspective.
Elevated concerns regarding reputational harm
Humanitarian actors may face increased public concern regarding groups traveling to areas controlled by ISIS because of increased media and governmental attention to the national security threats posed by FTFs. Framed in this way, the FTF threat may decrease public appreciation for humanitarian action and humanitarian needs, causing increased risks in terms of reputational harm. Where the public is hearing about tens of thousands of people traveling to fight on behalf of designated groups, and about individuals potentially returning home with fighting skills, as well as a surge of refugees seeking entry to those countries, there may be less understanding of humanitarian organizations that need to travel to and work in territories controlled by these groups. In such an environment, humanitarian actors may decide to invest additional resources into public education, awareness raising, and outreach.
Decreased autonomy of action with respect to engagement with all parties to armed conflict
At the root of principled humanitarian action is the so-called right of humanitarian initiative, pursuant to which humanitarian organizations may offer their services to all parties to armed conflict. So far, many governments have emphasized that principled humanitarian engagement with listed entities is not as such prohibited. But that may change as states are increasingly focused on FTF threats. There is a risk that some laws related to preventing and prosecuting FTFs—some building on preexisting counterterrorism measures, others new—would in fact make it unlawful to engage with certain proscribed groups. (There may also be an understandable chilling effect in terms of engaging directly with ISIS and other groups accused of recruiting or using FTFs.) Due to concerns over recruitment of FTFs over social media, states are likely to engage in more scrutiny of communications into and out of Iraq and Syria (and other territories where ISIS may gain control or exert significant influence) in the future. Free and unhindered humanitarian engagement and dialogue with such groups or their representatives may become unacceptable to Western and regional governments. For some, the line between talking to proscribed groups for purposes of recruitment and talking to them for purposes of humanitarian negotiations may just be too fine of a distinction for counterterrorism laws to capture, particularly at a time when national security concerns are running so high.
Recommendations to Strengthen Evidence-based Decision-making
How could a better understanding of the relevant trends and trajectories—in state responses to the threats posed by foreign terrorist fighters, in state support of principled humanitarian action in counterterrorism contexts, and, especially, in the potential intersections between those areas of state practice—be established? Four areas may be particularly impactful to focus on in the current environment.
Evidence of and data on compliance with Security Council counterterrorism measures
Make assessments of state compliance with binding Security Council counterterrorism measures publicly available. Researchers currently lack systematic, up-to-date, and comprehensive qualitative and quantitative assessments of individual state compliance with Security Council counterterrorism measures.[2] Certain Security Council anti-terrorism bodies are already tasked with making such assessments. For example, in Resolution 2178 the Security Council requested that the Counter-Terrorism Committee, with the support of the Counter-Terrorism Executive Directorate, “identify principal gaps” in U.N. member states’ capacity to implement certain key binding counterterrorism decisions that may hinder states’ “abilities to stem the follow of foreign terrorist fighters.”[3] In monitoring member states’ compliance with Resolution 1373 (2001), as of 2013 the Counter-Terrorism Committee had conducted visits to 88 states.[4] But for the most part those assessments concerning an individual state’s level of compliance with the pertinent counterterrorism resolution are not made publicly available. If those bodies are not in a position to make those assessments publicly available, then other bodies, states, or civil society actors could make their own evaluations.
More transparency and reliable data on state compliance with Security Council counterterrorism obligations would allow states—as well as academic researchers and other members of civil society—to more accurately assess and evaluate the utility, impact, and cost-effectiveness of these measures. In this paper, we put forward a provisional assessment framework; we hope our analysis will spur further interest in and catalyze the development of additional metrics and the systematic accumulation of new evidence and data in this key area of contemporary state practice.
Monitoring compliance with relevant (additional) fields of international law
Foster discussion and consensus on what it means to comply with IHL, IHRL, and IRL when discharging Security Council-imposed counterterrorism obligations, and make assessments of such compliance publicly available. Resolution 2178 (2014) and many other counterterrorism resolutions impose obligations on states to discharge their counterterrorism obligations in ways that comport with other fields of international law, such as international human rights law (IHRL), IHL, and international refugee law (IRL). But what, exactly, does that mean in practice? By what metrics could we actually measure whether a state is preventing and suppressing FTFs, for instance, consistently with IHL, IHRL, and IRL? To answer that question, we need an authoritative interpretation of what compliance with those legal frameworks would actually entail—not only in principle but also in practice—in implementing counterterrorism measures.
The Counter-Terrorism Committee, with the support of the Counter-Terrorism Executive Directorate (which already has a senior human rights officer), may be particularly well-placed to foster a discussion, as well as to solicit the views of member states and the Security Council, on this issue. At a minimum, it would be useful if the Security Council and its relevant counterterrorism bodies provided a clear written explanation of how they interpret the IHL, IHRL, and IRL obligations—in principle and how they would operate in practice—in the context of the Council’s counterterrorism resolutions. That explanation could then be incorporated into relevant technical assistance. Once devised, that explanation should be made publicly available, alongside the accompanying data and evidence on the extent to which states are—or are not—actually complying with those additional frameworks in implementing counterterrorism measures. Short of decision guidance and monitoring by a relevant Security Council body, other states or civil society actors may put forward their own interpretations and their own monitoring mechanisms. In the same vein, other bodies that monitor compliance with counterterrorism measures—such as the FATF—may consider similarly including evaluations of state compliance with other applicable fields of international law (especially IHL, IHRL, and IRL).
Potential exemptions in counterterrorism measures for principled humanitarian action
Evaluate whether to draft model exemptions from counterterrorism obligations for principled humanitarian action. One of the more striking results of our provisional analysis is that most of the reviewed states do not explicitly exempt from their counterterrorism legislation principled humanitarian action—even where anti-terrorism measures apply to situations of armed conflict and where the relevant form of principled humanitarian action is protected under IHL. There has been a significant amount of discussion over the past year about the possibility of exemptions and exceptions as a potential solution to the dilemmas posed when counterterrorism policies and humanitarian action intersect. Yet, to date, these discussions have been typically based on vague references to the notion of exemptions rather than actual concrete examples of what such legal texts might look like and how they might function. This lack of concreteness may have contributed to a sense that states are not willing to engage the notion of exemptions, or that humanitarian actors lack tangible ideas in this domain. Further research and analysis in this area would provide a broader evidentiary basis on which policy could be further developed. Going forward, this may be an area for particularly constructive, pragmatic, research-informed, and detailed dialogue between humanitarian actors, governments, and relevant Security Council bodies.
Relevant U.N. bodies—whether counterterrorism entities (such as the Counter-Terrorism Executive Directorate, the Counter-Terrorism Committee, and/or the 1267/1989 Monitoring Group); legal offices (such as the Office of Legal Affairs); and/or humanitarian entities (such as the Office for the Coordination of Humanitarian Affairs)—should evaluate whether to develop model clauses and framings for use in U.N. documents, resolutions, and the like regarding such exemptions. Those bodies could draw on and learn from previous potentially related examples, such as the limited humanitarian exemption concerning Somalia imposed by the Security Council in Resolution 1916 (2010). The main point of model clauses would not be to focus on creating text that would necessarily be exactly replicated but rather to provide examples to governments as to how exemptions and exceptions could be crafted while still complying with binding Council counterterrorism obligations and ensuring that states are not creating loopholes for those who intentionally seek to finance terrorism or abuse the non-profit sector.
Evidence and data related to potential counterterrorism impacts on humanitarian action
Participate in efforts to document impact by building consensus around what counts as impact and then specifically identifying those impacts over time. There is a relative dearth of publicly available information from humanitarian organizations and research bodies concerning the real or potential impacts of counterterrorism measures on specific instances of principled humanitarian action. Humanitarian organizations may have understandable reasons for not making such claims publicly. But the lack of such specific information may create a distorted view of the actual or perceived impacts of counterterrorism measures on principled humanitarian action. As noted above, Security Council-imposed FTF measures may exacerbate existing tensions—and increase confusion regarding pertinent legal obligations and policies—between state responses to terrorism and principled humanitarian action.
Humanitarian organizations could participate in and spearhead efforts to document impact, to identify criteria for impact, and to agree on what counts as impact (e.g., administrative impact, impact of needing to use funds for vetting and due diligence, other second-order impacts, reputational harm, and, of course, cases of both direct and indirect effects on beneficiaries). Those organizations could also identify ways that they can document impact without putting themselves, their staff, or their partners at risk. Such efforts need not necessarily mean engaging in vocal advocacy. Nor would such efforts necessarily need every organization to name itself and which specific impacts it has experienced. Rather, the most pressing steps would be to devise a way to collect inputs from high-risk areas and to turn those inputs into reliable data that can be used to inform the development of laws and policies, as well as the implementation of operational decisions. This could involve adopting a methodology that would allow organizations to self-report impacts anonymously, and then would allow an outside organization or group of researchers to verify these reports before entering them into a database that would quantify and weigh impacts. The U.N. Office for the Coordination of Humanitarian Affairs and the Inter-Agency Standing Committee may be particularly well-suited to help coordinate these efforts. Ultimately, awareness of these concerns and evidence-informed engagement by counterterrorism bodies, humanitarian organizations, states, and civil society actors—along with systematic documentation—may help ensure that all relevant perspectives inform policy at the intersection of counterterrorism agendas and humanitarian action.
[1] S.C. Res. 2178, para. 5, U.N. Doc. S/RES/2178 (Sept. 24, 2014).
[2] In Resolutions 1373 (2001) (para. 6) and 1624 (2005) (para. 5), the Security Council requested that states report to the Counter-Terrorism Committee regarding the steps taken to comply with those resolutions. While the resulting reports are useful, they suffer three key weaknesses: (1) many states did not self-report (or at least those reports were not made publicly available); (2) the reports relate to compliance only with Resolutions 1373 and 1624; and (3) by now, the vast majority of these reports are outdated. For example, the most recent country reports submitted by U.N. member states concerning their compliance with Resolution 1373 (2001) are from 2009. See Counter-Terrorism Committee, Country Reports, http://www.un.org/en/sc/ctc/resources/1373.html. The CTC website further that no new country reports are being added to the website. Counter-Terrorism Committee, Resources, http://www.un.org/en/sc/ctc/resources/. The CTC has also conducted global surveys on the implementation of Security Council Resolution 1373 (2001); the most recent such survey, from 2011, however, does not evaluate whether specific individual member states have complied with the relevant obligations entailed in Resolution 1373. See generally Counter-Terrorism Committee, Global Survey of the Implementation of Security Council Resolution 1373 (2001) by Member States (2011).
[3] S.C. Res. 2178, para. 24, U.N. Doc. S/RES/2178 (Sept. 24, 2014). If the CTC is not in a position to make the full reports public, it would nonetheless be useful if it explained what needs to remain classified and then provided a database on what could be public (for example, the relevant legislation of every reviewed state).
[4] Counter-Terrorism Committee, Annex - Report of the Security Council Committee established pursuant to resolution 1373 (2001) concerning counter-terrorism to the Security Council for its comprehensive consideration of the work of the Committee and its Executive Directorate from 2011 to 2013, Dec. 11, 2013, UN doc. S/2013/722, para. 10.
