The UN’s Counterterrorism Executive Directorate (CTED) study, The Interrelationship between counter-terrorism frameworks and international humanitarian law, released on Jan. 10, 2022 is a significant step forward in bringing these two legal frameworks into alignment and addressing the negative impacts counterterrorism measures (CTMs) have on principled humanitarian action. CTED’s announcement of the study says it is intended to “serve as the basis for discussion of the issues,” and “support Member States in their efforts to implement Security Council Resolutions…” Going forward, CTED will explore ways to continue dialogue on the issues and mainstream international humanitarian law (IHL) into its programs. The report encourages Member States to reconcile these “two areas of prime importance for sustainable peace and security.”
CTED supports the Security Council’s Counter-Terrorism Committee by conducting country visits to Member States to assess their counter-terrorism efforts and provide technical assistance. It identifies relevant trends, challenges and good practices in implementation of the Security Council’s counterterrorism resolutions coordination with other UN offices.
Citing UN Security Council Resolutions that reference IHL, the report states that CTMs may have negative impacts on humanitarian assistance and that humanitarian providers report that such measures have restricted their access to populations in areas where non-state armed groups designated as terrorist organizations operate. It notes that, “In certain circumstances, domestic counter-terrorism laws have either criminalized such activities as support for terrorism or introduced legal uncertainty as to their scope.”
After providing an overview of the Geneva Conventions and Protocols that constitute IHL, the study discusses the impact CTMs have had on humanitarian action, drawing on survey data and humanitarian input gathered by the UN’s Office for the Coordination of Humanitarian Affairs (OCHA). The information showed that humanitarian operations have been “routinely affected” by CTMs, including the way programs are designed and carried out, hindering the “ability of humanitarian organizations to carry out humanitarian activities efficiently and based on needs alone.” The threat of fines and criminal prosecution is also a factor. These CTM pressures come from governments, including but not limited to host governments where populations in need are located, and donor agencies.
To address these problems, the report said OCHA and humanitarian organizations offered these suggestions:
- Address the “need for more clarity as to the scope and implications of existing restrictive measures” and create exemptions that exclude principled humanitarian action from such restrictions;
- Implement enforcement policies that do not seek legal penalties on humanitarian organizations for incidental aid diversion;
- Engage the private sector to encourage them to provide essential services to humanitarian organizations; and
- Consider establishing “permanent structures for dialogue at the national level between Governments, their law enforcement and humanitarian agencies, the private sector, and humanitarian organizations on country-specific issues…”
CTED summarized steps it has taken to integrate elements of Security Council requirements on IHL in its country visits and technical assistance. It is also “leading an initiative aimed at producing a guidance document to support Member States in their efforts to implement measures to counter the financing of terrorism, including in accordance with the provision of resolutions 2462 (2019), in compliance with international human rights law.” This could help address the fact that “CTED’s engagement with Member States indicates that only a few States have implemented specific measures aimed at mitigation the impact of counter-terrorism, including counter-financing measures, on principled humanitarian action.” It also notes the need for awareness raising and open dialogue on these issues.
The report also examines the need for “meaningful accountability for the conduct of terrorist groups” for serious IHL violations. It notes a range of violations, from targeting hospitals and humanitarian facilities to kidnapping civilians. It calls for prosecution of these crimes “in accordance with internationally recognized fair trial standards…”
Finally, the report commits CTED to continue expanding dialogue on this issue, use its assessment tools to further its analysis and identify good practices, continue mainstreaming IHL in technical assistance programs and identify and assess relevant trends and developments. It calls on Member States to ensure that CTMs comply with international law and sets out specific steps that support that goal.
The full report is available here.