In the realm of modern geopolitics, the imperative to combat terrorism has engendered a multifaceted framework of counter-terrorism measures. While these measures are designed to ensure national security and thwart the activities of extremist groups, their ramifications on the domain of international humanitarian law and the provision of humanitarian aid are gaining prominence as subjects of critical inquiry. Due to the current state of modern warfare and the prevalence of terrorist acts, International Humanitarian Law (IHL) and its principled legal approach to regulating warfare are left seemingly overlooked regarding counter-terrorism measures. Acts of terrorism committed by non-State actors during times of armed volatility have been a point of contention between the traditional objectives and rationales of IHL, and those of laws combatting terrorism. Both categories of law share similarities, possess distinguishable differences and there even exists areas of applicative overlap. However, they are nevertheless two structurally and principally distinct legal regimes with differing objectives regarding the regulation of armed conflicts and acts of terrorism during peacetime.

Overview of counter-terrorism laws

Counter-terrorism laws generally incorporate laws and judicial measures enacted by inter-governmental bodies that seek to prohibit and counteract acts of terrorism and curb support to terrorist groups.1 These laws seemingly attempt to combat acts of terrorism by not only criminalising the acts and groups themselves but also legally severing all direct and indirect support to terrorist organisations by both State and non-state actors. This legal framework is not as developed as IHL. However, due to the considerable amount of universal and regional instruments adopted by the by States as far back as 1963, Counter-terrorism laws have gained a notable footing in the international legal framework.2

The framework itself consists of at least 14 international treaties, conventions and regional measures that expressly relate to the regulation of counter-terrorism measures.3 An example of these instruments would be the International Convention for the Suppression of the Financing of Terrorism of 9 December 1999 (Terrorist Financing Convention). According to Article 4 of the Terrorist Financing Convention, State parties are obliged to enact necessary measures within the scope of its domestic law, which criminalises and sanctions the direct or indirect funding of terrorist acts or terrorist organisations. Instruments such as this act as international legal components that form part of an institutional legal configuration, which seeks to authoritatively subdue terrorist acts at a domestic level.

However, since the events of 9/11, Security Council Resolutions have become an important component of enacting and implementing Counter-terrorism measures. Security Council Resolution 1373, passed on 28 September 2001, created specialised legal obligations for United Nations (UN) member States regarding Counter-terrorism measures.4 The resolution itself decided that member states were to take active steps to prevent and suppress the financing of terrorist acts, refrain from providing any form of support to persons or entities participating in terrorist acts and criminalise any support or involvement in terrorist acts in their respective domestic bodies of law.5

Overall, it put forward preventative actions for the State to counteract terrorist acts on a domestic level.6 More recently, the Security Council adopted Resolutions 2462 and 2482, which reaffirmed the obligations contained in Resolution 1373. Both resolutions demand that states comply with their obligations under IHL when implementing domestic legal avenues of prosecution for offences relating to acts of terrorism, countering the financing of terrorism, and implementing international instruments to combat illicit terrorist financing.7,8 These resolutions clearly demonstrate contemporary interests regarding Counter-terrorism measures.

Overview of international humanitarian law

As the primary established legal regime regulating armed conflicts in general, IHL is the result of reciprocal expectations of participants in war and military strategy, based on the principles of humanity, charity, chivalrousness and civilized behaviour.9 IHL seems to regulate the means and methods available to participants in armed conflicts, in order to protect persons or properties that are adversely affected by such armed conflicts.10 The foundational principles that form the jurisprudential base of this legal regime purport to primarily grapple with the admissibility of general conduct and behaviour in armed conflicts (jus in bello), rather than the lawfulness of preliminary incentives to initiate armed conflicts (jus ad bellum).11

The rules pertaining to IHL are codified in the Four Geneva Conventions of 1949 and the subsequent Additional Protocols of 1977, which contain rules applicable in both international armed conflicts and non-international armed conflicts.2 Two legal branches stem from IHL. The ‘law of Geneva’ and the ‘law of The Hague’ as named after the legal instruments that employ their provisions, the four Geneva Conventions and The Hague Conventions.10 The ‘law of Geneva’ contains provisions that legally harbour the interests of persons who are disengaged from hostilities in armed conflicts, which include civilians and combatants who remove themselves from hostilities in armed conflicts.12 The ‘law of The Hague’ provides for the rights and obligations assigned to belligerents (parties to a conflict), restricting the means and methods of warfare when conducting themselves in armed conflicts.13

Applicative contention: the inhibitions on frontline humanitarian action

The laws regulating acts of terrorism are only comprehensive in the way that they are fragmented across various jurisdictions. They are spread out across numerous international treaties, conventions and resolutions that find no foundational common ground in defining and regulating terrorism. It seems that the obligations placed on states by the international legal framework on counter-terrorism are reaffirmed without there being an exhaustive document, which confines the legal consensus and definitions necessary to effectively respond to acts of terrorism. This fractured approach carries the risk of States misemploying Counter-terrorism measures in their legal framework. This misemployment could lead to the frustration of other international obligations, such as those contained under IHL. Contentions such as this have been demonstrated to manifest themselves not only in jurisprudence but in frontline humanitarian operations as well.

Due to the measures encouraged within the international counter-terrorism framework to curb direct and indirect assistance to terrorist groups, principled and impartial humanitarian action has been seemingly adversely affected.14 Over the years, reports have indicated that the Counter-terrorism measures, and the sanctions that stem from those measures, have impacted international humanitarian agencies and organisations in carrying out humanitarian activities according to the provisions of IHL. 15

Principled humanitarian action is defined according to the principles that cement and guide its conceptual humanitarian foundation. These principles include the principle of independence, impartiality, neutrality and humanity.16 The principle of independence refers to autonomy from governments, while the principle of impartiality refers to the endeavour in relieving suffering despite nationality, race, religious beliefs, class or political opinions.17 The principle of neutrality prohibits picking sides in hostilities to enjoy the confidence of all persons. Lastly, the principle of humanity refers to the commitment to alleviating human suffering without discrimination through mutual understanding, friendship, cooperation and lasting peace.17 The primary recipients of such humanitarian aid are civilians and persons no longer participating in warfare.16

IHL also provides for the protection of the wounded and sick in both international armed conflicts (IACs) and non-international armed conflicts (NIACs) through the Geneva Conventions. Article 9 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949), enables impartial humanitarian organisations to protect the wounded and sick, medical personnel and religious clerics in IACs.18 Additionally, Common Article 3 of the Geneva Conventions requires that the wounded and sick, persons hors de combat and non-combatants be collected and cared for in NIACs. Furthermore, Common Article 3(2) enables impartial humanitarian bodies to offer aid to all parties to a NIAC.19

However, due to the various UN Security Council Resolutions, such as Resolution 1373, that require and biannually reaffirm targeted financial sanctions against non-state armed groups (NSAGs) labelled as “terrorist”, a broad scope of potential liability could inhibit humanitarian action relating to payments made to NSAGs for providing relief to civilians. 20These prohibitions could delay, divert or even block the transit of humanitarian goods due to restrictions based on these counter-terrorist measures.21

According to data collected on this matter, 52% of impacts on humanitarian action logged were operational in nature (E.g. Strains on aid delivery and implementation), 29% were financial in nature and 18% were legal in nature.22 Although, the liabilities that humanitarian organisations face at a UN level are narrowly formulated, providing such funds will only be construed as an offence if it was done with the knowledge that it was going to be used for terrorist acts in crimes of support to terrorism.19,23 At a national level, however, humanitarian agencies run the risk of being placed on a sanctions list or even prosecuted within regional sanction regimes with broad scopes of strict liability and intense enforcement procedures.21 These domestic sanction regimes have even provided for the institution of legal proceedings against the support of terrorist groups through medical aid without humanitarian exemptions.19

Despite the concerns raised by humanitarian agencies to donor States and governments providing little to no accommodation for humanitarian action within their counter-terrorist frameworks, those States still require further evidential data regarding the impact these measures have on humanitarian organisations.22

However, even in instances where counter-terrorist sanction regimes ostensibly cater for humanitarian aid exemptions, humanitarian aid organisations face major and costly hindrances in navigating the often complex and restrictive sanctions regimes in rendering aid to civilians adversely affected by the extremities of war. For example, in Syria, humanitarian aid organisations have reported that lengthy and costly application procedures to render aid and procure goods result in notable operational delays in instances where time-sensitive action is needed.24 Furthermore, in Somalia, US counter-terrorist sanctions hindering material support to the terrorist group al-Shabab have reportedly led to the 900,000 civilians living in al-Shabab-controlled areas starved of humanitarian aid intended to alleviate the effects of famine prevalent within those areas.25 This is due to the fact that humanitarian aid organisations have to navigate the costly financial penalties for instances of non-compliance with US sanctions relating to the paying of taxes to al-Shabab in order to access these areas in the first place.25

These real-life cases illustrate how counter-terrorism laws can unintentionally hinder humanitarian aid efforts, highlighting the intricate challenges that arise when balancing security measures with the imperative to provide timely and effective assistance to populations affected by conflict and crisis.

Conclusion

Despite the differences in structure and implementation, both legal regimes find some common legal ground regarding the regulation of acts of terrorism.26 As Counter-terrorism laws purport to combat and sanction acts of terrorism according to the treaties, conventions and resolutions that form its legal foundation, IHL also endeavours to protect civilians from war crimes during armed conflicts that include various acts of terrorism.6 This commonality can give rise to judicial applicative overlap between the two bodies of law.26 Despite the inherent differences in the way both legal regimes govern acts of terrorism, it may not be productive to conflate the two bodies of law as completely dissimilar in uncovering feasible avenues of legal solutions to the issue of terrorism.

This common goal should be cemented in the minds of policymakers and international institutions seeking to quell the destructive nature of terrorist groups and their propensity to cause harm to civilians and non-combatants caught in the crossfire. Terrorism deserves strict and comprehensive sanctions. However, due to the abstract nature of armed conflict, the targets of those sanctions should be clear and precise. Missing the mark has demonstratively led to instances where those who deserve the brunt of such sanctions the least, experience its strict and devastating effects the most.

In the relentless pursuit of national security, counter-terrorism laws have inadvertently cast a shadow over the sanctity of humanitarian aid. The unintended consequences of these measures have manifested in restricted access, delayed assistance, and stifled engagement with vulnerable populations. As the world grapples with conflicts and crises, the clash between security imperatives and humanitarian principles remains a poignant reminder that the preservation of life and dignity demands a delicate equilibrium. Striking this balance is not just a legal imperative but a moral imperative, reaffirming that safeguarding humanity's most vulnerable must transcend the unintended barriers erected by counter-terrorism laws.

References

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