Briefing on the promotion and strengthening of the rule of law in the Maintenance of International Peace and Security: international humanitarian law

April 1, 2019, 3:00 PM • U.N. Security Council, 8499th Meeting • U.N. Doc. S/pV.8499, pp. 6–7

Remarks of Professor Naz K. Modirzadeh

[A PDF of these remarks is available here: link]

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I appreciate the opportunity to share some of my reflections on the intersections between international humanitarian law and counterterrorism measures. My primary objective here is to raise key considerations to help inform this afternoon’s discussion. I will focus on the importance of ensuring that counter-terrorism measures, including measures adopted by the Security Council, do not inhibit the principled humanitarian action foreseen in, or required by, international humanitarian law. I will also focus on steps that the Council can take to further safeguard humanitarian action and strengthen compliance with international humanitarian law.

In short, I am concerned that counter-terrorism measures may be interpreted and applied in ways that might ultimately diminish commitments to principled humanitarian action. I urge the Council to build on a recently adopted resolution by taking more robust and more concrete steps to ensure implementation of the extensive and vital international humanitarian law protections for principled humanitarian action. In this regard, settings where counter-terrorism measures may overlap with situations of armed conflict warrant particular attention.

The common story about the relationships between counter-terrorism frameworks and international humanitarian law presents these regimes as sharing a unitary purpose. This story tells us that these frameworks are alternative sets of norms created to solve the same problems. Under this narrative, which I believe misapprehends the fundamental purposes of these frameworks, any divergences between these regimes can be managed merely by technical or legal solutions. I ask the Council to consider an alternative approach — namely, that the challenges that I discuss here may require political solutions crafted by Member States. Let me explain.

International humanitarian law is a body of treaty and customary rules, drafted and ratified over the course of more than a century. States have developed international humanitarian law as the primary legal framework designed to regulate the exceptional situation of armed conflict. Under international humanitarian law, some forms of violence, irrespective of who undertakes them or for what purposes they are undertaken, are not unlawful in themselves so long as the conduct comports with the applicable rules. International humanitarian law regulates means and methods of warfare in respect of all parties to armed conflict. It also permits — and even demands — that principled humanitarian action be undertaken in armed conflict. These rules are designed, first and foremost, to protect civilians and other non-combatants.

In comparison, counter-terrorism measures aim to prevent, suppress and punish acts characterized as terrorism. Building on sectoral conventions and regional treaties, since 2001 the Security Council has taken the lead in regulating terrorism globally. But that is only part of the picture. As several recent reports have detailed, the increasingly complex web of counterterrorism measures encompasses an ever-growing range of laws, policies and prevention initiatives. This framework contrasts with the relatively narrow and specific purview of international humanitarian law.

When these two regimes come into contact with one another, tensions may emerge between them. For instance, international humanitarian law foresees that humanitarian actors may provide impartial medical care to wounded fighters hors de combat as well as provide life-saving goods and services to civilian populations under the de facto control of non-State parties to armed conflict. Yet under several counter-terrorism frameworks, these same activities are characterized as illegitimate and unlawful.

Where principled humanitarian action is considered to constitute a type of illegitimate support for terrorism, counter-terrorism measures may inhibit, or even impede, the work of humanitarian actors in wide-ranging and consequential ways. Those actors may thus experience difficulties in providing relief and protection in line with humanitarian principles. Humanitarian actors may become understandably wary of engaging in conduct that they believe can expose them to legal liability, and they might accordingly limit or halt their operations. Nevertheless, to maintain operations where needs are greatest, humanitarian actors have taken diverse steps and invested extensive resources in seeking to comply with counter-terrorism requirements while adhering to humanitarian principles.

For their part, researchers have gathered evidence of the impact of counter-terrorism measures. For example, in 2017 the Harvard Law School Program on International Law and Armed Conflict carried out a pilot empirical survey study. The study represented an initial attempt to gather concrete data regarding these matters. Sixty-nine per cent of survey respondents indicated that counter-terrorism measures had curtailed their work. In my view, the question is not whether counter-terrorism measures might adversely affect principled humanitarian action, but the scope and scale of that impact.

Alongside other bodies, the Security Council itself has increasingly recognized some of these possibilities and the imperative to safeguard principled humanitarian action in counter-terrorism contexts. For example, in 2010 the Council established a limited sectoral humanitarian exemption in relation to the Somalia sanctions regime. The General Assembly, in the Global Counter-Terrorism Strategy Review — first in 2016 and again in 2018 — urged States to guard against counterterrorism risks to humanitarian and medical activities.

Furthermore, four days ago, the Security Council adopted resolution 2462 (2019), on counter-terrorism financing. That resolution directs Member States to ensure that their domestic laws and regulations establish “serious criminal offenses” related to the provision of certain kinds of financial support to “terrorist organizations or individual terrorists”. The resolution also demands that Member States ensure that all measures taken to counter terrorism comply with their obligations under international law, including international humanitarian law.

On the one hand, the adoption of the resolution reaffirms the Council’s commitment to the centrality of international humanitarian law as a matter of international peace and security. Yet, on the other hand, the Council is in a position to do much more. For example, consider the generic references by the Council to complying with international humanitarian law and other applicable rules of international law while combating terrorism. While important in principle, those references do not sufficiently comprehend and address the diverse and consequential ways that counterterrorism measures and international humanitarian law protections for principled humanitarian action may conflict in practice.

In conclusion, I wish to urge the Security Council to expand upon and prioritize its efforts to safeguard principled humanitarian action. As the many Government officials and policymakers in the Chamber today will know from first-hand experience, counterterrorism measures may prove very difficult to amend once they have been instituted. Any tension with the agreed norms of international humanitarian law should be of urgent concern to the Council. Consequently, it is imperative to ensure that counter-terrorism measures at all levels are crafted and implemented in ways that respect principled humanitarian action and do not degrade it. I therefore urge the Council to take several steps.

First, the Council may wish to guard against overly broad and vague notions of what constitutes unlawful support to terrorism, including in its own practice concerning designated individuals and entities.

Secondly, the Council and its subsidiary bodies may wish to ensure that none of the activities that underlie principled humanitarian action form part or all of the basis for subjecting individuals or entities to sanctions or other restrictive regimes.

Thirdly, the Council may wish to urgently consider comprehensive exemptions for principled humanitarian action that are grounded in a steadfast commitment to international humanitarian law.

Fourthly, and above all, the Council may wish to uphold and ensure respect for hard-won legal protections for principled humanitarian action amid the tumult of war. Far too much is at stake for the millions of people suffering in armed conflict for it to pursue anything else.

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