Counter-terrorism measures must not restrict impartial humanitarian organizations from delivering aid

This year marks the twentieth anniversary of the attacks of September 11, 2001, the adoption of Security Council Resolution 1373, and the establishment of UN Security Council's Counter-Terrorism Committee.

These anniversaries are a good opportunity to assess counter-terrorism measures adopted by the Security Council and elsewhere. The International Committee of the Red Cross (ICRC) wishes to contribute a humanitarian and legal perspective to today's discussion and address potential negative consequences, recent positive developments, and what more needs to be done to improve counter-terrorism measures.

International humanitarian law (IHL) prohibits terrorist acts. As a humanitarian actor, and as guardian of IHL, the International Committee of the Red Cross (ICRC) condemns such acts, irrespective of their perpetrators, and recognizes the need for States to take measures to ensure the security of their people.

However, if not adopted and implemented carefully, such measures can have negative consequences on persons most in need of humanitarian protection and assistance in armed conflicts. Certain measures, most notably counter-terrorism legislation and sanctions, can criminalize and restrict impartial humanitarian action, while counter-terrorism clauses in grant contracts, banking de-risking measures, and sanctions regimes collectively also lead to a "chilling effect," which disincentivizes or prevents frontline responders from reaching populations in need. This particularly affects local-level humanitarian actors and their partners.

Counter-terrorism measures compounded with Covid-19 restrictions have made access for impartial humanitarian organizations more difficult in the past year. We estimate that over 60 million people live in areas where non-state actors exercise control. With counter-terrorism measures and Covid-19 restrictions, these populations and others affected by armed conflict and violence are harder to reach. Impartial humanitarian actors such as the ICRC are hindered in their ability to visit persons being detained by "the other side", recover dead bodies, train armed groups on IHL, restore damaged water supplies and other services for the civilian population, and facilitate mutual detainee releases and swaps.

In recent years, positive developments have included elements of Resolutions 2462 and 2482, through which the Security Council recognized the impact counter-terrorism measures can have on impartial humanitarian action, and required States to comply with international humanitarian law when acting to prevent terrorism. These Resolutions have also urged States to "take into account" the "potential effect" of counter-terrorism measures on impartial humanitarian action. The June 2020 report by CTED and the 1267 Committee shows that most States may not yet be doing so. The October 2020 report by the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism has increased awareness on the issue and highlights steps the UN Security Council could take.

There have been some other positive developments in protecting impartial humanitarian action while countering terrorism. The last few years have seen the adoption by some States of new legislation recognizing this impact and taking steps, including through humanitarian exemptions, to minimize this impact, such as those adopted recently by Chad and Switzerland. National cross-sector dialogues among interested stakeholders (including NGOs / humanitarian actors, government regulators and the private sector) now exist in a small number of countries, and initiatives such as the recent Global Counter-Terrorism Forum expert meetings can increase knowledge of and best practices related to such fora.

More remains to be done, however. Further well-crafted humanitarian exemptions can be adopted by more States and promoted by the Security Council. These are best done through standing exemptions covering the exclusively humanitarian activities carried out by impartial humanitarian organizations operating in accordance with IHL rather than ad hoc remedies which can be inefficient and take unwarranted time and resources. National cross-sector dialogues can be established in more countries. Humanitarian impact assessments can be incorporated into the work of more sanctions regimes, as can IHL-compliance clauses. Banking over-compliance with counter-terrorism provisions can be addressed through better regulation.

With regard to foreign fighters and their families, the ICRC is particularly concerned with the situation of children. Children affected by such measures, even those accused of crimes, are first and foremost victims. The ICRC encourages States to find solutions that are in the best interest of these children, notably by seeking to ensure that they are not separated from their parents and siblings, by repatriating them, with their mothers and siblings, unless against their best interest, and by refraining from prosecuting children for mere association with an armed group. This is all the more important given the dire humanitarian situation these children face. Reintegration will be key for these future generations.

The designation of persons as "foreign terrorist fighters," or the terrorist nature of the acts they may have committed, may in no way be invoked as a justification for the non-observance of legal protections they are entitled to under international law, notably IHL, when applicable. Independent and neutral organizations, such as the International Committee of the Red Cross, should be granted access to these individuals, so they can assist detaining authorities in ensuring that detainees are treated humanely and in conformity with applicable international law and standards.

This year's important anniversaries provide a good opportunity to get the balance right between international humanitarian law and humanitarian action on one hand, and counter-terrorism provisions adopted by the Security Council and elsewhere on the other. We look forward to participating in these continuing efforts.