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The Counter-Terrorism Committee Executive Directorate and International Humanitarian Law: Preliminary Considerations for States

By Dustin A. Lewis, Naz K. Modirzadeh, and Jessica S. Burniske

March 2020 • Legal Briefing

Harvard Law School Program on International Law and Armed Conflict

In developing international humanitarian law (IHL), States have aimed in part to lay down the primary normative and operational framework pertaining to principled humanitarian action in situations of armed conflict. The possibility that certain counterterrorism measures may be instituted in a manner that intentionally or unintentionally impedes such action has been recognized by an increasingly wide array of States and entities, including the United Nations Security Council and the U.N. Secretary-General. At least two aspects of the contemporary international discourse on intersections between principled humanitarian action and counterterrorism measures warrant more sustained attention. The first concerns who is, and who ought to be, in a position to authentically and authoritatively interpret and apply IHL in this area. The second concerns the relationships between IHL and other possibly relevant regulatory frameworks, including counterterrorism mandates flowing from decisions of the U.N. Security Council. Partly in relation to those two axes of the broader international discourse, a debate has emerged regarding whether the U.N. Security Council may authorize one particular counterterrorism entity — namely, the Counter-Terrorism Committee Executive Directorate (CTED) — to interpret and assess compliance with IHL pertaining to humanitarian action in relation to certain counterterrorism contexts.

In a new legal briefing for the Harvard Law School Program on International Law and Armed Conflict (HLS PILAC), Dustin A. Lewis, Naz K. Modirzadeh, and Jessica S. Burniske seek to help inform that debate by raising some preliminary considerations regarding that possibility. The authors focus on the possible implications of States and other relevant actors pursuing various responses or not responding to this debate. One of the authors’ goals is to help raise awareness of this area with a focus on perspectives drawn from international law. Another is to invite a broader engagement with the question of the preservation of the humanitarian commitments laid down in IHL in a period marked by a growing number — and a deepening — of the intersections between situations of armed conflict and measures to suppress terrorism.