On the impact of counterterrorism laws on humanitarian action in armed conflicts.
By Caroline Montag
Counterterrorism laws are on the rise globally. Since the early 2000s (especially in the context of 9/11), the UN Security Council has adopted various binding resolutions, obliging States to criminalize terrorist-related acts. For instance, §2(e) of Resolution 1373 obliges all UN member states to “ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice […]”. As a consequence, States are tending to adopt increasingly strict legislation in the domain. At first sight, this might sound like good news: Terrorism poses a serious threat to national and global security, to human rights, and to democracy. However, the reality is not that simple, as many counterterrorism laws actually violate human rights, and hinder civic society and NGOs from doing their work. The focus of this article will be to illustrate one of these issues, namely how counterterrorism laws are shrinking the space of humanitarian organizations working in armed conflicts.
In general, in the realm of counterterrorism legislation, clear concepts are missing. Until this day, there is no internationally agreed-upon definition of what a “terrorist act” is, nor what is meant by “supporting terrorist acts”. Thus, the UN Security Council is obliging States to introduce criminal laws in the name of combating terrorism, without actually determining what this entails. Unclear concepts in law are dangerous, as they can lead to arbitrariness and the abuse of power by State authorities (see for instance the criticism expressed against the Philippine Anti-Terrorism Act of 2020).
Therefore, many States can and do adopt counterterrorism laws with a broad scope. Some do this to advance their own political and security interests. Others do so to ensure that terrorists can be criminally prosecuted, to disincentivize becoming a terrorist, and to cut terrorists’ resources. Although the latter option is often done in good faith, it can have many unintended negative consequences.: penal laws with too much breadth can also harm groups that are actually not intended to be targeted (similar to how trawlers also catch fish that will not be sold).
In the context of anti-terror legislation, humanitarian organizations working in areas of armed conflict are one of these targeted groups. Their work involves assisting civilians and those participating in the conflict that are hors de combat (wounded, sick, surrendered or in the power of another party), especially in meeting their basic needs. The main law governing humanitarian action in armed conflicts is international humanitarian law (IHL). Accordingly, relief action must be humanitarian, impartial and undertaken without any adverse distinction. Therefore, assistance in armed conflicts must be implemented according to needs alone. Furthermore, under IHL, relief personnel may not be punished for the mere fact of providing help. It is noteworthy that states also have to adhere to IHL.
Besides IHL, humanitarian organizations are bound by the domestic laws of their donor countries, as well as the law of the state on whose territory the work is done, and where the organization is registered. The impact of domestic anti-terror legislation is for example felt by Médecins Sans Frontières (MSF) in Nigeria. Nigerian law prohibits medical care to be provided in areas controlled by terrorist groups, including Boko Haram. This hinders MSF from delivering medical assistance to those in need, simply due to their geographical location, thereby violating IHL. Such contradictory regulations (IHL vs. Nigerian domestic law) make it impossible for NGOs to comply with their different legal duties.
Due to the growing number of broad and strict counterterrorism legislation, an increasing risk of acting unlawfully for NGOs arises, and many humanitarian organizations are facing trials around the world. To illustrate how a domestic law can create such problems, it is useful to look at the Netherlands and its criminal bill 35 125. Said bill has not yet been adopted, but has already passed the First Chamber of the Dutch parliament. Many human rights groups fear that other European States will be influenced by it and will adopt copy-cat legislation.
In its current form, bill 35 125 makes it an offense to be present in a “terrorist area” without the Dutch government’s permission, however the criteria on how to get permission is unclear. The rationale of the law is to prevent citizens from joining terrorist groups and ensure that the Dutch state can criminally prosecute foreign fighters. However, the bill does not just penalize foreign fighters, but also criminalizes all activities in “terrorist-related areas” conducted without permission by the Dutch government. Organized armed groups (ISIS, al-Qaida, al-Shabaab etc.) are regularly labeled as terrorists. Therefore, under the proposed bill, humanitarian organizations are not allowed to work in areas controlled by these groups without permission by the government. Yet it is unrealistic to expect NGOs to ask for permission for all actions done on those territories, especially when considering that they have to adhere to IHL and the domestic laws of different countries. On top of that, when exactly a terrorist group is “controlling” an area can be extremely difficult to know, particularly because of the constant change in power dynamics and control in conflict zones.
Such legislation has numerous negative consequences. To name a few: Firstly, it has a chilling effect on humanitarian action. In the Dutch scenario, NGOs would have to decide between working in areas “controlled by terrorists” and facing criminal prosecution in the Netherlands, or not engaging in that area. Thus, humanitarian work in armed conflicts is reduced, with detrimental effects on the civilians that are arguably the largest victims of terror. Secondly, the Dutch bill, and anti-terror laws in general, lead to greater government scrutiny of NGOs’ staff and increased monitoring. This goes against the principle of impartial humanitarian action, which, as mentioned above, is fundamental to IHL. Thirdly, banks are increasingly cautious when dealing with humanitarian organizations and have been closing or blocking accounts, or delaying transactions. NGOs and their staff working in conflict zones are already facing a lot of pressure and emotional distress, and adding this extra burden is counterproductive.
But what can be done to prevent this? On a state- or UN-level, explicit exemptions for humanitarian activities could be included in counterterrorism laws. This has been done by New Zealand in its Terrorism Suppression Act, as well as by the UN Security Council in Resolution 2444 (2018) concerning sanctions in Somalia. Another additional or alternative option is to have broader requirements that counterterrorism measures may not impede humanitarian activities and have to comply with IHL. In any case, anti-terror legislation is based on too many assumptions and lacks research on its impact. This needs to be changed for legislation to be adopted or fine-tuned in the right manner.
These measures would be a step in the right direction, but, as long as we do not have a specific definition of what an “act of terrorism” is and what qualifies as “supporting” these, problems for humanitarian organizations will continue to exist. For example, an organization like the International Committee of the Red Cross will easily fall under an exception for humanitarian organizations, but smaller, local organizations which do not benefit from being recognized internationally might not.
In conclusion, counterterrorism measures vastly limit the ability of impartial humanitarian organizations to fulfil their duties. As a consequence, the humanitarian space is shrinking. This tension between anti-terror legislation and principled humanitarian action must be resolved. But that alone will not be enough. As mentioned in the beginning of this article, there are many other negative consequences arising from counterterrorism measures, such as stigmatizing and discriminating against certain groups, violating the freedom of religion, as well as the freedom of expression. Therefore, my main message is that we have to be vigilant of counterterrorism laws, scrutinize them and ask questions, instead of just silently accepting them, blinded by the feeling of safety they might give us.