Counterterrorism measures address increasingly broad forms of support to terrorist acts and groups. When they apply in armed conflict such measures can impede the operations of humanitarian organizations. Country-specific sanctions can raise similar problems.
The attacks of 11 September 2001 were not the first instance of international terrorism on a large scale. But the extensive counterterrorism (CT) measures adopted by states and international organizations in the years that followed have given rise to new clashes with protections afforded under other areas of international law, most notably international humanitarian law (IHL) and human rights.
As these CT measures adapt to respond to the constantly evolving manifestations of international terrorism, they continue to give rise to new points of contact, and frequently friction, with IHL. These are the subject of this research paper.
For a number of years, one such point of friction has been with the rules of IHL that regulate humanitarian operations. CT measures once focused on prohibiting and criminalizing acts of violence, but they have progressively expanded to address ever broader forms of support to terrorist acts and groups designated as terrorist. When these measures apply in situations of armed conflict there is a real risk that, unless they include adequate safeguards, they can impede humanitarian organizations from operating as foreseen by IHL, and in accordance with humanitarian principles. Country-specific sanctions imposed for other objectives, such as ending conflicts or protecting civilians, raise similar challenges for humanitarian action.
These problems are not new, and there have been efforts to resolve them. But the details of the interplay between the different bodies of law are complicated, and new issues arise as CT measures continue to evolve. Solutions at international and national level remain elusive.
The tensions between these legal measures and the lack of clarity surrounding them are having a significant impact on humanitarian actors’ capacity to operate in contexts where groups designated as terrorist are active or where country-specific sanctions are in force. This occurs as a direct result of the prohibitions themselves, their incorporation in funding agreements and their cascading effects, as commercial actors that provide services necessary for humanitarian operations – such as banks, insurers and commodity providers – restrict the services they are willing to provide to humanitarian actors for fear of liability.
This paper:
- presents the three bodies of law – CT measures, country-specific sanctions and IHL – identifying the principal points of friction;
- clarifies outstanding questions and frequent misunderstandings;
- makes recommendations to contribute to finding practical solutions for resolving the tensions.
A note on terminology
The present paper uses the term ‘CT measures’ to refer to international and domestic instruments whose objective is preventing and suppressing acts of terrorism and support thereto. They include multilateral conventions requiring states to criminalize, prosecute or extradite persons suspected of certain acts, sanctions adopted for CT purposes, domestic criminal measures, and restrictions in funding agreements.
For the sake of simplicity, the paper uses the term ‘sanctions’ to refer to measures adopted by the UN Security Council, the EU and states unilaterally, whether for CT or other purposes; they give rise to similar adverse effects on humanitarian action. An analysis of the precise nature of these restrictions and their legal basis – measures not involving the use of armed force under Article 41 of the UN Charter in the case of UN ‘sanctions’, and countermeasures or retorsions in the case of EU restrictive measures and sanctions adopted by states unilaterally – is beyond the scope of the paper.
The paper draws a distinction in its treatment of those measures which require states to criminalize terrorist acts and support thereto on the one hand and, on the other, sanctions (whether for counterterrorist or other purposes) which do not, even though the domestic implementation of such sanctions may provide criminal penalties for their violation.
Methodology
This research paper was elaborated on the basis of a desk review, interviews conducted from September 2020 to July 2021 and a small expert consultation convened by Chatham House in April 2021. It also draws on discussions hosted by other organizations in this same period.
