By: Jemimah Jehopio.

Background

Attacks in Zamfara State, Nigeria in January 2022 resulted in over 200 deaths and several injuries(United Nations, 2022). Unfortunately, such terrorist attacks are not uncommon on the international scene and thus it is no surprise that efforts to combat terrorism are high on the international agenda, as evidenced by the adoption of robust counterterrorism (CT) measures. While these efforts harbour legitimate objectives, they have affected International Humanitarian Law (IHL) as well as its implementation through principled humanitarian action in consequential ways. This article seeks to highlight key conceptual and operational challenges arising from the interactions between the CT measures and IHL. The article also explores the way forward, highlighting that while it is justifiable to view terrorism through a security lens, respect for IHL and effective CT measures are complementary objectives that can and should be pursued in tandem.           

Impact of Counterterrorism Measures on International Humanitarian Law

The CT measures criminalising humanitarian engagement with designated terrorist groups essentially withhold humanitarian aid from certain groups of people thus eroding the concept of impartiality in the provision of humanitarian assistance (International Committee of the Red Cross, 2015). Such criminalisation influences the choices of humanitarian actors regarding where and whom to serve their programs, rather than those choices being dictated by needs alone (Inter-Agency Standing Committee, 2019). Instead, humanitarian actors are also obliged to give equal weight to avoiding certain groups and areas in which those groups might have a presence or the potential to access aid (Norwegian Refugee Council, 2018). As a result of this cherry picking, some communities may not get the assistance they need solely because of their geographical location (Norwegian Refugee Council, 2018). Consider countries like Afghanistan, Somalia and Nigeria where designated non-state actors effectively control vast swathes of territory, a disproportionate percentage of humanitarian programs is taking place in government-controlled areas partly to comply with the CT legislation (Norwegian Refugee Council, 2018).  In light of the foregoing, criminalising humanitarian engagement with designated groups can inadvertently result in the devastating effect of withholding humanitarian relief from those most in need.

Contractual obligations imposed on humanitarian organisations requiring cooperation with CT efforts, by submission of partners’ personal information, threaten the independence of humanitarian agencies (Mackintosh, 2011; Kurnadi et al., 2016). The principal objection of the humanitarian community is that this contractual requirement promotes the perception that NGOs are intelligence sources (Duplat & Mackintosh, 2013). One example of such obligations placed on NGOs is the United States Agency for International Development (USAID) Partner Vetting System (PVS), which requires “foreign assistance grant applicants to submit detailed personal information on leaders and staff of local partner charities to be shared with US intelligence agencies” (Charity & Security Network, 2012). Consider the effect of such contractual obligations in Somalia where two US organisations, International Medical Corps and CARE, were expelled from areas under Al-Shabaab control in 2008 for allegedly spying and gathering intelligence that led to the assassination of Al-Shabaab leader Sheikh Maalim Adam Ayro in a U.S. air strike (Elhawary et al., 2011). Once again, sixteen humanitarian actors were expelled in 2011 following accusations by Al-Shabaab of, among other things, “collecting data” and “lacking complete political detachment and neutrality with regard to the conflicting parties in Somalia” (Duplat & Mackintosh, 2013). On this basis, the contractual obligations in donors’ clauses requiring submission of partners’ personal information have opened Pandora’s box as demonstrated by the catastrophic expulsions of humanitarian actors.

The CT legislation and sanctions regimes criminalising provision of direct and non-direct material support to designated terrorist groups impose actual and potential liability for carrying out principled humanitarian action (International Committee of the Red Cross, 2015). This liability arises from the very broad and vague definitions in criminal legislation of unqualified acts of “material support” to terrorist organisations that could, in practice, result in the criminalisation of the core activities of humanitarian organisations such as life-saving medical assistance or humanitarian relief (International Committee of the Red Cross, 2015). In such circumstances, principled humanitarian actors face a dilemma: either to forego activities protected under IHL or conduct such activities but risk criminal liability (International Peace Institute, 2018). Moreover, Courts have interpreted the humanitarian exception narrowly as including the provision of medicine only, thereby excluding the provision of medical treatment that draws upon medical expertise (U.S. v. Farhane, 2011; U.S. v. Shah, 2007). Support of a broad nature such as training, expert advice or assistance, services and personnel could attach liability under the material support laws (Elhawary et al., 2011). It thus becomes apparent that the inclusion of broad definitions of material support in CT legislation can effectively criminalise core activities of humanitarian actors.

The issue of financial de-risking, where financial institutions are unwilling to provide services for humanitarian organisations owing to concerns about counterterrorist financing regulations, is a major hurdle for humanitarian actors (Norwegian Refugee Council, 2018). Organisations often resort to informal, unregulated methods such as hawalamoney transfer networks when unable to transfer money into certain areas (Gordon & Taraboulsi-McCarthy, 2018). Ultimately, de-risking is counterproductive to efforts to reduce terrorist financing, since the unregulated methods employed in its pursuit are particularly vulnerable to terrorist financing risks (Financial Action Task Force, 2013). In practice, the effects of financial de-risking are significant delays to implementation of programming (Norwegian Refugee Council, 2018). Consider the banking restrictions imposed on Non-Governmental Organisations (NGOs) in the West Bank, and particularly in Gaza which delay receipt of funds causing not only a reduction in the number of operational NGOs but also the projects to lose some of their significance to beneficiaries (Gordon & Taraboulsi-McCarthy, 2018). Upon this background, financial de-risking not only gives latitude for terrorist financing but also delays program implementation, which are all red flags under IHL.

Reflections on the Way Forward

In spite of the clear evidence that IHL is as an endangered species in the CT realm, there is room to mitigate the existing tension by adoption of the measures now briefly highlighted. Firstly, the careful crafting and effective implementation of humanitarian exemptions and language around respect for IHL in CT measures. Secondly, administrative clarity in the implementation of CT measures. Thirdly, setting up multi stakeholder dialogues to coordinate and ensure coherent policy approaches that protect IHL and principled humanitarian action. Finally, systematic assessment and reporting on member states’ efforts to develop and implement CT measures that protect principled humanitarian action.

Conclusion

In conclusion, there is no doubt that security and counterterrorism objectives are pertinent and must be pursued. However, respect for IHL and humanitarian action are essential tools in the effort to combat terrorism and not privileges to be sacrificed at a time of tension. Humanity, as well, is fundamentally important and a balance ought to be struck in the pursuit of CT objectives, upholding the integrity of IHL with utmost consideration of the imperative necessity for principled humanitarian action. The adoption of effective policy, normative and legal mitigation measures is essential in carving out a humanitarian space in the CT realm and ensuring that principled humanitarian assistance can continue to reach those most in need.