Counterterrorism measures are developed to ensure individual and collective security in response to terrorist attacks, but there is growing evidence that counterterrorism measures can infringe upon the protection of civilians by inhibiting the provision of assistance and protection. This tension was the subject of an IPI policy forum on May 23rd, entitled, “The Protection of Civilians in Counterterrorism Contexts: Safeguarding the Space for Principled Humanitarian Action,” organized with the Permanent Mission of Switzerland to the United Nations, and co-sponsored by the Permanent Missions of Germany, Mexico, the Netherlands, and Peru to the United Nations.

Marine Buissonnière, a consultant and the former Secretary-General of Médecins Sans Frontières/Doctors without Borders (MSF), said that humanitarian assistance, as provided for by International Humanitarian Law, faces new challenges to protecting civilians in a post-9/11 international environment. Although in 2016, member states adopted UN Security Council Resolution 2286, that entitled health workers to provide care in all circumstances without incurring any form of harassment or sanctions, health workers, over two years later, continue to face issues for providing “impartial” care, serving all people regardless of their identity or status, she said.

The ethical dilemma that humanitarian actors and international lawmakers now face, she said, is that healthcare professionals find themselves “cornered, caught between counterterrorism laws that can criminalize their duties to impartially treat all, and International Humanitarian Law ethics and International Human Rights Law.”

In this context, what is new is not the criminalization of healthcare, she said, “but how counterterrorism frameworks, in a sense, appear to have strengthened the basis–moral and legal–to justify harassment, arrests, and prosecutions” against medical professionals. The “vague and broad” definitions of terrorism and support to terrorists have enabled some people to interpret medical treatment as a form of “illegitimate support,” thereby criminalizing those who offer assistance, even though impartial medical care is protected under International Humanitarian Law.

“When ethics and International Humanitarian Law are not prioritized by both those seeking and those providing medical care,” she said, the act of providing impartial medical services “inevitably becomes criminalized, perpetuating a chilling effect on the provision of impartial care that is detrimental not only to those banned or to those listed as terrorists but detrimental, at the end of the day, to us all.”

Jürg Lauber, Permanent Representative of Switzerland to the UN, and  chair of the Group of Friends of the Protection of Civilians, described the role of the state in addressing the negative impact that UN sanctions can have on humanitarian activities. His recommendation, from a policymaking perspective, was that “we as states should really try to do everything to address this and to avoid the dilemma between these two sets of measures.” He discussed two steps for this. “We need to raise awareness for the issue,” he said, “and secondly, come down with a set of practical measures.”

Yves Daccord, Director-General of the International Committee of the Red Cross (ICRC), said that criminalization of humanitarian assistance in the past two decades had changed the landscape in which humanitarian organizations operate. The effect of counterterrorism policy on the space for humanitarian action posed two issues aside from criminalization, he said. Lack of impartiality in offering medical assistance or withholding aid to those in need based on their affiliation can “create notions of good victims, who have rights to be helped, and victims who do not deserve to be helped because they are under the control of, or on the territory controlled by, a non-state armed group labeled as terrorist.”

And since building trust among communities in conflict is necessary for the provision of humanitarian assistance, he said, these distinctions are undermining the trust built by humanitarian actors, making it impossible for them to fulfill their aim of providing assistance. “I think we’ve seen over time people challenging us more,” said Mr. Daccord. “There is a lot of tension, polarization, for an organization like the ICRC…it’s absolutely critical that they are able to demonstrate on a daily basis that they are impartial and neutral.”

Naz Modirzadeh, Director of the Harvard Law School Program on International Law and Armed Conflict, brought to light the different ways policy makers talk about the conflict between counterterrorism and humanitarian law, and the state of this debate. She highlighted the norms of International Humanitarian Law in contrast to counterterrorism measures, which, she said, “We tend to talk about…as though they are in a relationship with one another…sharing a common purpose.” But, she said, “I’d like to suggest that we avoid this misrecognition. It is not a value judgement to suggest counterterrorism and International Humanitarian Law are distinct and aim at different purposes.”

Counterterrorism, she explained, connotes a sense of urgency and immediacy whereas International Humanitarian Law tends to be decided over time and negotiated through the diplomacy of many different actors. International Humanitarian Law “presumes that there is a distinction that we must maintain between war and peace and is only applicable in situations of armed conflict,” she said. “On the other hand, counterterrorism frameworks often blur the lines between war and peace by combining elements relating to armed conflict with elements connected with the resort to force and law enforcement.”

As such, International Humanitarian Law sees humanitarian assistance and protection for people, including purported enemy civilian populations as “legitimate and indeed mandatory,” Ms. Modirzadeh explained. Under a counterterrorism framework, she said, the same support may be primarily perceived as “dangerous, because it can help free up the resources of terrorist groups.”

However, Ms. Modirzadeh saw hope for a solution in providing legal exemptions for humanitarian workers. “The idea of exemptions merits much closer attention,” she said. “I think there was a time when this was thought politically impractical or so sensitive that it was not worth having a conversation about. What I’m hearing here today is that it is indeed perhaps one of the better solutions to this dilemma and that we have good examples that we can build upon…Every counterterrorism measure from this point further should incorporate an acknowledgment, reaffirmation, and indeed, where appropriate, a very particular exemption related to principled humanitarian access where relevant.”

Ms. Modirzadeh also called for greater discussion that should involve the private sector. In response, Lise Gregoire-van Haaren, Deputy Permanent Representative of the Kingdom of the Netherlands to the UN, spoke on how to reconcile humanitarian action with the due diligence requirements by banks and governments.

“We feel that raising awareness is a very important first step,” she said. “Secondly, governments and national banking associations could provide more guidance to NGOs on how to comply with counterterrorism measures and sanction regimes.”

Closing remarks were made by Reinhard Krapp, Minister, Permanent Mission of Germany to the UN; Juan José Gómez Camacho, Permanent Representative of Mexico to the UN; and Gustavo Meza-Cuadra, Permanent Representative of Peru. IPI Vice President Adam Lupel moderated.

Related coverage:
Background Note, April 26th Workshop