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Where counterterrorism measures impede humanitarian action, domestic law is key

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An AMISOM soldier conducts a security check on a woman at a distribution centre in Afgoye, Somalia, where over 5,000 internally displaced people were given something to eat. © UN Photo/Tobin Jones

Françoise Saulnie

Since 9/11, it’s been hard to miss the impact of counterterrorism (CT) measures on human rights, especially as primacy has shifted from the protection of individuals to deference to the security defense sector. However, CT measures continue to undermine international humanitarian law (IHL) and impact protected humanitarian and medical activities.

The pervasive influence of counterterrorism on IHL can be traced to the interaction of two main elements: the criminal status of non-state fighters under domestic law and the poor effectiveness of judicial guarantees in situations of armed conflict. The global “war on terror” has bolstered the criminal framework applied to members of non-state armed groups in non-international armed conflict leading to the use of a hybrid legal framework for such a situation. This strengthened criminal framework is thus competing with IHL while at the same time undermining the status of humanitarian and medical activities carried out by impartial humanitarian organizations pursuant to the rules of IHL.

It is difficult to date the creation of the counterterrorism legal framework in most countries, but it’s clear that 9/11 was when the world entered the new era of the war on terror and the legal paradigm that came with it. Although some voices at that time were raised against using “war” to describe the fight against terrorists and its ensuing CT activities, states’ responses to terrorism have relied on a mix of recourses ranging from heavily militarized operations to the inclusion of new terrorism-related offenses in their national criminal laws.

This hybrid solution was turned into an international global system without taking into account its weaknesses that have been abused over the years at the national level by many governments that conveniently qualified their armed opposition groups as criminal or terrorist.

As a consequence, starting in 2001, the United Nations Security Council (UNSC) and the United Nations General Assembly (UNGA) came up with a comprehensive and coercive international system to fight terrorism.

International consensus to fight terrorism

The international consensus to fight terrorism has amplified nationalistic state security trends that challenge the application of IHL in hybrid CT and armed conflict contexts.

Before the adoption of Additional Protocol II to the Geneva Convention in 1977[i], internal armed conflict was handled by states under the framework of their criminal domestic law and counterinsurgency military doctrine. They qualified non-state armed group combatants as criminal fighters or terrorists. At that time and in such contexts, medical care to such fighters or the provision of humanitarian assistance to a population under their control was not protected by the existing rules of IHL.

Even after 1977, this hybrid categorization for this type of conflict and legal framework was revived by states in some contexts. This was notably the case for the second war in Chechnya in 1998, where Russian federation forces refused to consider it as an armed conflict and pretended to run a security military operation to restore law and order against terrorists.

The designation of individuals or groups as being criminal or terrorist is not limited to international bodies such as the UN or the European Union. It remains within the prerogative of each state dealing with a situation of armed conflict on its territory. The adoption at the domestic level of definitions of “terrorists” and the criminalization of individuals associated with terrorists broaden the area of tension between CT and IHL.

The criminal status of fighters of non-state armed groups under domestic law is having a spill-over effect that contaminates humanitarian and medical personnel as well as the activities they perform by associating them to the criminal label of terrorist. This further challenges the protected status of humanitarian and medical personnel as well as their activities and the facilities they use which are all protected under IHL. For instance, providing medical and humanitarian assistance to wounded and sick non-state armed fighters without discrimination can fall within the scope of many domestic criminal offenses such as material support and complicity with criminals.

This misqualification by criminal law of humanitarian assistance impacts the protected status and security of the medical facilities and personnel involved. It also creates a criminal liability on medical and humanitarian personnel involved in a medical mission and is also a clear breach of the IHL prohibition to punish people that have carried out medical activities compatible with medical ethics, no matter the circumstances. Similarly, the criminal status of “fighter” taints the status of any population living in disputed areas or areas that are under their control. It also deprives these populations of their international right to humanitarian and medical assistance under IHL. Unfortunately, according to the current enforcement of the CT framework, humanitarian and medical assistance in such areas and to populations controlled by these groups are considered as meeting the criminal qualification of providing material support to terrorists.

The newly introduced reference to “innocent civilians” is soft language that is in fact hiding the common agreement to exclude the “suspected population” from their right to survival. This also entails criminal liability of humanitarian and medical personnel involved in humanitarian activities labeled as material support to criminals. The blurring of the lines between humanitarian and criminal frameworks cannot be sustained in the high-risk and sensitive jurisdictional contexts of humanitarian action if IHL is to be respected as it should be.

The long way to acknowledge the impacts of CT measures on IHL

Facing the possible criminalization of their work and subsequent attacks, impartial humanitarian organizations have been alerting the United Nations Security Council (UNSC) since 2015 to ensure it acknowledges and remedies the negative impacts of CT on IHL protection. During this time, states have repeatedly denied any overlap, or that CT measures are undermining the rules of IHL. The burden of proof has been placed on impartial humanitarian organizations to demonstrate these impacts on their activities.

From the outset, some states have stressed the importance that any counterterrorism measures (including sanctions) adopted by the United Nations be targeted at terrorists individuals and entities so as that they do not hinder the provision of humanitarian assistance.

Nonetheless, until 2019, the UNSC limited itself to reminding and urging states to ensure that any measures taken to counter terrorism comply with their obligations under international law, in particular international human rights law, international refugee law, and IHL. However, wielding a generic sentence is insufficient to ensure a safe legal environment for impartial humanitarian organizations. Indeed, in CT and conflict-affected contexts, criminal domestic laws have continued to prevail over IHL rules and principles, thereby creating legal pressure on, and security risks for, humanitarian and medical personnel, along with their activities and facilities. Criminal responsibility being of an individual nature, humanitarian organizations have been unable to shift this risk from the individuals (their staff) to the organization.

The direct exposure of humanitarian and medical personnel to criminal investigations has been and remains a key concern in terms of duty of care, notably toward national staff[ii]. This is in addition to efforts to stop attacks from states on medical facilities, particularly when used for the wounded and sick from non-state armed groups.

It was only in 2019, after more than two years of humanitarian initiatives, research, and publications, that some states, and ultimately the UNSC, acknowledged the existence of such negative impacts created by CT measures on IHL. In March 2019, UNSC Resolution 2462, taken under Chapter VII of the UN charter (threats to the peace, breaches of the peace, and acts of aggression), went further. It urged states, when designing and applying measures to counter the financing of terrorism, to take into account the potential effect of those measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with IHL.

This concern and formulation were reiterated in UNSC Resolution 2482. Such wording clarified the UNSC’s intention to protect humanitarian actions according to IHL from negative impacts or from any incidental damages created by CT measures. This followed a long UNSC history of preserving humanitarian assistance from the impacts of its various sanctions regimes through humanitarian exemptions, as well as with the use of exceptions and other derogations.

The adoption of UNSC Resolution 2462 acknowledged the negative impact of CT on humanitarian action, but falls short of taking on the responsibility to solve the problem or to rule on how to solve it. The UNSC transferred that responsibility to states to effectively take into account the risk of overlap and contradiction between the CT framework and IHL in situations of armed conflict. It is therefore at the level of domestic law that we must ask and look for guarantees regarding the primacy of IHL—as lex specialis in situations of armed conflict[iii]—over the rigorous content and application of criminal law.

The necessary inclusion of humanitarian exceptions in CT measures/legislations

For those genuinely interested in taking into account and resolving what they qualify as the “unintended impacts” of CT measures on IHL, the choice is rather straightforward. If there is no intent to criminalize humanitarian assistance in contexts where CT and armed conflict overlap, this intent has to be translated into words by carving humanitarian exceptions from the realm of CT offenses. Drawing from the UNSC language and taking it a step further, domestic criminal law should explicitly provide that CT measures and offenses do not apply to exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with IHL. This is the simplest and most logical formulation of a humanitarian exception and has been included by a limited number of states in their domestic CT laws. Indeed, following up on the implementation of UNSC Resolution 2462 by states, the UN Counter-Terrorism Committee Executive Directorate recognized that only a handful of states have indeed taken into account the adverse impact of countering the financing of terrorism on humanitarian action.

The question remains as to why so many states are waiting or proposing unworkable alternatives, such as ad-hoc and case-by-case derogation procedures. These are not only the wrong solutions in the context of emergency humanitarian assistance, but they are also contravening the basic rules and principles of IHL. Indeed, IHL provides for an unconditional right to humanitarian assistance for victims of armed conflict, and to the independence, impartiality, and neutrality of humanitarian action, which must be freed from external political control and authorization.

This article is part of a series on the role of the UN system in preventing violent extremism and countering terrorism (PVE/CT), done in collaboration with the Brian Urquhart Center for Peace Operations.

Françoise Saulnier is the International Legal Director, Médecins Sans Frontières.

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Notes

[i] Adopted for the protection of victims of non-international armed conflicts.
[ii] Criminal investigations may last many years and even if they don’t end up with a conviction and an ensuing criminal sentence they de facto freeze humanitarian activities for the duration of the procedure.
[iii] This is the case notably in non-international armed conflict where the state is confronted by a non-state opponent.

Originally Published in the Global Observatory