On July 1, 2020, Charity & Security Network (C&SN) submitted input to the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism on the interface of international human rights (IHRL) and international humanitarian law (IHL) in counterterrorism (CT) regulation.
In the submission, a response to a call for comments for its upcoming report on this issue, C&SN urged the UN to be more proactive in ensuring that counterterrorism (CT) measures comply with these bodies of law, stating, “The current balance struck between compelling CT concerns and these binding legal obligations comes down heavily in favor of the former.”
Specifically, the comments focus on UN Security Council Resolution 2462 and U.S. domestic CT law and address:
- The interdependence between IHRL, IHL and counterterrorism in terms of free speech and association rights, including the challenges civil society experiences as a result of counterterrorism regulations.
- The need for consistent humanitarian exemptions that are based on IHL principles in UN and member state CT measures.
- The negative impact of sanctions programs on IHRL and IHL, including due process rights.
They also note that the “concept of proportionality is essential in considering these issues. Too often CT measures impose broad, long-term restrictions that are not tailored to specific security concerns.”
In addition to requiring member states to adopt certain types of strict laws against counterterrorist financing, Resolution 2462 requires that this be done “in a manner consistent with their obligations under international law, including international humanitarian law, international human rights law and international refugee law,” the comments note. It “Urges 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 international humanitarian law,” the comments explain.
One year after the passage of Resolution 2462, a survey of member states indicates “weak compliance with IHL.” The measures that have been taken towards implementation consist of “various forms of dialogue or general references that are not a substitute for legal protections for humanitarian actors,” the comments note, adding that only three states reported introducing humanitarian exemptions. The submission urges the UN to prioritize guidance and resources regarding IHRL/IHL/IRL compliance in states’ implementation.
The comments also emphasize the need for consistent humanitarian exemptions in UN and member state CT measures that are based on IHL principles, explaining that the U.S. framework lacks adequate humanitarian exemptions. “The material support statute has a very narrow humanitarian exception; only medicine and religious materials are permitted. Under a strict interpretation of the law, medical services, food, water, blankets, shelter, clothing, or other materials necessary to adequately respond to situations that endanger the lives of victims of armed conflict or natural disasters are not included in the exemption,” the comments state. Increasingly, the U.S. government has taken a zero-tolerance approach to material support and additional restrictions, not contained in law, are now found in donor agreements.
Finally, the comments explain that sanctions programs negatively impact IHRL and IHL, including due process rights, citing a 2019 report by International Peace Institute that examined the impact of sanctions. That report found that although sanctions regimes are used with the assumption that they minimize harm, they actually can devastate civilian populations, particularly those that rely on humanitarian aid, including refugees and internally displaced persons. Sanctions regimes also affect humanitarian organizations’ ability to deliver aid on the basis of need alone and not be directed by the political objectives of sanctions programs.