Person:

Burniske, Jessica

Several significant legal, policy, and practical concerns are at issue in whether armed non-state actors (ANSAs) will ultimately be recognized—by all relevant institutions and actors—as bearing human-rights obligations in general under international law in a manner previously reserved primarily for states. In considering this set of issues, it is important to clarify what obligations, if any, the United Nations (U.N.) Security Council and the U.N. General Assembly recognize ANSAs as possessing under IHRL. This June 2017 Briefing Report with Annexes provides an overview of research conducted by HLS PILAC concerning modalities in which the U.N. Security Council and the U.N. General Assembly have addressed ANSAs with respect to human rights; ways in which these U.N. principal organs have distinguished between different types of ANSAs; and the consequences of these organs possibly establishing responsibility of ANSAs in relation to the protection and fulfillment—or, at least, the non-abuse—of human rights. While it is incontrovertible that the U.N. Security Council and the U.N. General Assembly have recognized, at a minimum, that the conduct of at least some ANSAs can amount to violations or abuses of human rights, it is not currently possible to state that either of these principal U.N. organs has taken sufficient steps to formally endow ANSAs with human-rights obligations in general under international law.

In 2014, reports suggested that a surge of foreign jihadists were participating in armed conflicts in Syria, Iraq, and elsewhere. The United Nations Security Council responded by imposing in Resolution 2178 (2014) an array of obligations on member states to counter the threat posed by “foreign terrorist fighters” (FTFs). In the intervening year, those states have taken a range of actions — though at various speeds and with varying levels of commitment — to implement the FTF obligations imposed by the Council.

Meanwhile, many states continue to fund and otherwise throw their support behind life-saving humanitarian relief for civilians in armed conflicts around the world — including conflicts involving terrorists. Yet, in recent years, members of the humanitarian community have been increasingly aware of the real, perceived, and potential impacts of counterterrorism laws on humanitarian action. Part of their interest stems from the fact that certain counterterrorism laws may, intentionally or unintentionally, adversely affect principled humanitarian action, especially in regions where terrorist groups control territory (and thus access to civilians, too). The effects of these laws may be widespread — ranging from heightened due diligence requirements on humanitarian organizations to restrictions on travel, from greater government scrutiny of national and regional staff of humanitarian organizations to decreased access to financial services and funding.

Against that backdrop, this briefing report has two aims: first, to provide a primer on the most salient issues at the intersection of counterterrorism measures and humanitarian aid and assistance, with a focus on the ascendant FTF framing. And second, to put forward, for critical feedback and assessment, a provisional methodology for evaluating the following question: is it feasible to subject two key contemporary wartime concerns — the fight against FTFs and supporting humanitarian aid and assistance for civilians in terrorist-controlled territories — to meaningful empirical analysis?

In developing international humanitarian law (IHL), States have aimed in part to lay down the primary normative and operational framework pertaining to principled humanitarian action in situations of armed conflict. The possibility that certain counterterrorism measures may be instituted in a manner that intentionally or unintentionally impedes such action has been recognized by an increasingly wide array of States and entities, including the United Nations Security Council and the U.N. Secretary-General. At least two aspects of the contemporary international discourse on intersections between principled humanitarian action and counterterrorism measures warrant more sustained attention. The first concerns who is, and who ought to be, in a position to authentically and authoritatively interpret and apply IHL in this area. The second concerns the relationships between IHL and other possibly relevant regulatory frameworks, including counterterrorism mandates flowing from decisions of the U.N. Security Council. Partly in relation to those two axes of the broader international discourse, a debate has emerged regarding whether the U.N. Security Council may authorize one particular counterterrorism entity — namely, the Counter-Terrorism Committee Executive Directorate (CTED) — to interpret and assess compliance with IHL pertaining to humanitarian action in relation to certain counterterrorism contexts. In this briefing, we seek to help inform that debate by raising some preliminary considerations regarding that possibility. We focus on the possible implications of States and other relevant actors pursuing various responses or not responding to this debate. One of our goals is to help raise awareness of this area with a focus on perspectives drawn from international law. Another is to invite a broader engagement with the question of the preservation of the humanitarian commitments laid down in IHL in a period marked by a growing number — and a deepening — of the intersections between situations of armed conflict and measures to suppress terrorism.

Counterterrorism laws and policies have been and will almost certainly continue to be part of the political landscape facing humanitarian actors. As terrorist-designated non-state actors increasingly control access to territory, humanitarian actors will continue to face dilemmas presented by adhering to counterterrorism legal requirements while delivering principled humanitarian assistance. Along with past literature, the Pilot Empirical Survey Study on the Impact of Counterterrorism Measures on Humanitarian Action (the Study) indicates that some humanitarian actors both perceive and experience an adverse impact arising from counterterrorism laws and policies on the provision of life-saving assistance. The results of the Study can help inform states, donors, policy-makers, humanitarian actors, and other parties of possible areas of tension or issues that might warrant legal or policy change (or both). Those results can also help shape research agendas. In this Comment, I provide my views on these issues, based not only on the Study but also on the other work of the Counterterrorism and Humanitarian Engagement (CHE) Project, which is now part of the Harvard Law School Program on International Law and Armed Conflict (HLS PILAC). The CHE Project at HLS PILAC has been conducting legal research, policy analysis, and engagement efforts with counterterrorism officials, government donors, and humanitarian actors for over five years. While the Study serves as the first effort to quantitatively assess the impact of counterterrorism regulations at a general level on humanitarian action, the broader efforts of the CHE Project suggest a number of areas for possible reflection, decision-making moments, and critical questions for consideration by donor governments and the humanitarian sector.