Who should authoritatively interpret and apply international humanitarian law (IHL) in the counterterrorism context is the focus of a legal briefing from the Harvard Program on International Law and Armed Conflict, The Counter-Terrorism Committee Executive Directorate and International Humanitarian Law: Preliminary Considerations for States.
The briefing raises the possibility of an entity such as the UN’s Counter-Terrorism Committee Executive Directorate (CTED) taking on the role of “assessing Member States’ compliance with areas of IHL concerning humanitarian action in relation to U.N. Security-Council-mandated counterterrorism measures.”
By way of background, the briefing notes that “certain counterterrorism responses may pose various challenges to, and even impede, engagement in principled humanitarian action, including where such action is contemplated in, or even required by, IHL.” This is usually based on the premise that humanitarian organizations might, intentionally or not, act as conduits for terrorist support.
The briefing outlines the history of CTED, the scope of its activities, and its relationship to IHL. It also goes into some detail on UN Security Council (UNSC) Resolutions 2462 (2019) on countering terrorism financing, and 2482 (2019) on threats to international peace and security caused by international terrorism and organized crime. It examines the text of the resolutions, noting that it’s not clear within those resolutions that the UNSC intended to expand CTED’s authority to IHL. The briefing then walks through several examples to better understand what CTED’s role in this arena might look like. It also explains that it is necessary in any instance to assess whether there is an instance of armed conflict, because most IHL provisions “are applicable only in relation to situations of armed conflict as defined in IHL.”
There has been little or no public discussion of whether CTED or a similar entity should be in charge of compliance with IHL in counterterrorism, the briefing states. It explains that “the coming months may present a particularly important period and time-sensitive opportunity for States, U.N. system actors, and other interested stakeholders to consider and to publicly express their views” on this topic.” The paper then lists a number of potential entry points for States to engage in this process, including existing engagements with counterterrorism entities and the implementation processes for Resolutions 2462 and 2482.