Introduction

Over the last decade, the humanitarian community has sought to mitigate restrictions imposed by counterterrorism measures on impartial humanitarian activities. For many humanitarians involved in this struggle, at least a partial victory came over a five-day period in 2019. On 28 March of that year, the Security Council adopted a resolution in which the Council urged States to take into account the potential effects of counterterrorism measures on impartial humanitarian activities.1 Then on 1 April 2019, the Council convened a debate on international humanitarian law (IHL), focusing largely on safeguarding humanitarian action in counterterrorism contexts.2 In the subsequent two years, humanitarians have seized on this resolution to seek limited humanitarian-sector “carve-outs” or broad general licences for humanitarian activities in counterterrorism contexts.

We can trace this complex story to the large – and, perhaps, growing – number of situations that double as armed conflicts under IHL and counterterrorism contexts.3 A proliferation of these “joint” contexts has been accompanied by an apparent prioritization – in practical and political terms, if not necessarily in legal terms – of counterterrorism concerns over respect for impartial humanitarian activities. In short, in situations that qualify simultaneously as armed conflicts and counterterrorism contexts, a widening global counterterrorism structure regulates, constrains and orients humanitarian aid and protection activities for civilian populations in need and fighters hors de combat.

In the last decade, humanitarian agencies, donors, scholars and policy researchers have invested significantly in efforts to address these constraints. Pro-humanitarian-imperative efforts have included drafting extensive legal analyses and field-based reports on the impact of counterterrorism measures on humanitarian action; convening workshops with counterterrorism actors, financial-sector officials, donors and humanitarian bodies; and (re)drafting exceptions, exemptions and other provisions meant to “carve out” humanitarian commitments in counterterrorism systems. As a result of these types of efforts, more actors across governments, international organizations and humanitarian bodies are aware of the impact of counterterrorism measures. For our part, we have been – and continue to be – involved in helping shape these debates, and we continue to find this work important.

However, all is not well. True, some awareness has been raised and a handful of humanitarian “carve-outs” have been adopted. Yet these are, in our view, relatively small victories, and they may risk creating a false perception of having comprehensively overcome the core challenge. We are more concerned than ever that the humanitarian imperative may be undergoing a slow erosion by appeasing a growing counterterrorism architecture that in practice rejects some of the core normative commitments underlying impartial humanitarian activities. With more such “victories”, the humanitarian community ultimately risks defeat.

In this opinion note, we explore ways to understand the contemporary encounters between the counterterrorism architecture and impartial humanitarian activities while critically assessing our role in shaping responses to those encounters. Humbled by a decade of experience in this area, we aim to explain how counterterrorism concerns have been elevated over the humanitarian imperative and to offer potential avenues to secure greater respect for impartial humanitarian activities. The more that we have engaged in recent years with counterterrorism bodies, humanitarian donors and operational agencies, the more we have come to believe that what lies beneath these trajectories is a failure – including by us – to acknowledge with clear eyes what is a fundamental clash of values. In our view, by failing to build strategies accordingly, we and others have misapprehended the core challenge and developed approaches that have proven ill suited to safeguarding the humanitarian imperative from the expanding counterterrorism architecture.

In the next section, we sketch the counterterrorism system. Following that, we frame what we see as a foundational values clash. Then the next section identifies four of the humanitarian community's responses. In the penultimate section, we suggest possible pathways that States, humanitarian bodies and other actors concerned with safeguarding impartial humanitarianism may take. In the final section, we conclude by underscoring the stakes in the struggle for values primacy in this area.

For this opinion note, by “impartial humanitarian activities”, we mean the actions or steps taken by an entity or one or more natural persons to provide, in respect of a situation of armed conflict, relief or protection to civilians in need or fighters hors de combat, or some combination of such categories of people.4 Those entities may include, among others, a State or non-State party to an armed conflict or an impartial humanitarian body, such as the International Committee of the Red Cross (ICRC).5 By the “humanitarian imperative”, we mean a peremptory requirement to undertake – on an urgent basis – impartial humanitarian activities where needs are unaddressed. Finally, by “impartial humanitarianism”, we mean concern for the urgent fulfillment of human needs in an armed conflict as a pre-eminent moral good and the accompanying disposition to act based on that concern rather than for other reasons.6

The growing counterterrorism structure

A global counterterrorism architecture enjoys nearly unanimous support among States. The structure consists of an assemblage of laws, policies, institutions, concepts and practices that States and other international actors have designed and implemented over several decades – at the global, regional and national levels – to prevent, suppress and punish terrorism.7 The United Nations (UN) Security Council plays a central role in setting the system's operational scope and normative orientation,8 with all UN Members required to accept and carry out the Council's decisions under the UN Charter.9 Notably, the architecture lacks a shared general international legal definition of “terrorism”.10 State support for the structure persists publicly even if, behind closed doors, officials express significant reservations concerning an array of political, legal and other adverse impacts that the system has on a vast range of matters. Those reservations relate to both the substantive aspects of those impacts and the relatively closed decision-making process of the Security Council, leaving little room for other international actors to shape the Council's “legislative” activity in this area.

Indeed, the already-large global counterterrorism structure keeps growing, including in relation to numerous situations of armed conflict. As terrorist threats – both actual and perceived – continue to rise around the world, the counterterrorism architecture is occupying political space, expanding its material footprint, and taking on more and more “advisory” or “technical” roles. This trajectory may be detected through a widening of the counterterrorism system's bureaucratic reach; increases in the structure's personnel as well as in its financial and institutional resources; and the architecture's expansion into diverse fields, such as organized crime, biometrics and battlefield evidence. An increasingly wide variety of counterterrorism measures – be they of a legal, regulatory, administrative or other nature – are accordingly proliferating.

A clash of values

As we understand it, the humanitarian imperative is based on normative commitments to provide – in all armed conflicts – impartial aid and protection to all civilians in need and fighters hors de combat irrespective of affiliation. Impartiality – in the sense of being driven by the needs of the persons affected by the conflict rather than their affiliation11  – serves as one of the humanitarian imperative's primary ideological justifications. In this sense, the humanitarian imperative embodies deeper and more principled ideas and moral tenets than its textual IHL formulations can express.

The global counterterrorism architecture is not built on the same core normative commitments. The counterterrorism system requires taking sides – actively – against those who commit terrorism and their supporters. States cannot agree on a singular and unifying international legal definition of terrorism. Nevertheless, the global counterterrorism system rests on the animating and organizing notion that there is undeviating agreement on the moral abhorrence of terrorism and, as a corollary, on the illegitimacy of acts of terrorism and the provision of support to terrorism.

When seen through a counterterrorism lens, impartial humanitarian activities are often conceptualized as supporting terrorism. There is the “fungibility theory”, according to which otherwise “innocuous” assistance to a terrorist group “frees up” the group's resources for terrorist conduct. There is the “false-front theory”, according to which organizations or individuals operating under a false humanitarian guise funnel support to terrorist groups. Also there is the “naïve humanitarians theory”, according to which terrorist groups dupe well-intentioned but naïve humanitarian actors into serving as terrorism-support conduits.

In its current form, the counterterrorism architecture functionally rejects – based on one or more of those rationales – two of the linked premises underlying impartial humanitarian activities.12 First, to a greater or lesser extent depending on the context, the counterterrorism system recasts many – and, potentially, all – impartial humanitarian services as forms of illegitimate support to terrorist groups. Second, the structure also repudiates the corollary notion that impartial humanitarian actors may offer and provide their services in relation to a terrorist group's members – irrespective of whether the members are hors de combat – and to civilian populations in need under the group's de facto control and authority. In short, under these counterterrorism systems, “support to terrorism” is defined in part as seeking access to provide – and providing – life-saving assistance and protection to civilians in need and fighters hors de combat, that is, as impartial humanitarian activities.

To be sure, our diagnosis of a clash of fundamental values is not universally held. A countervailing position, which articulates a vision of shared core values and corresponding objectives between the humanitarian imperative and the counterterrorism system, may be detected, including in viewpoints set out by several humanitarian agencies. Those organizations and actors typically frame the encounter between the regimes by underscoring that acts of terrorism devalue human life and contravene human dignity. They also argue that both impartial humanitarianism (including its embodiment in IHL) and the counterterrorism system seek fundamentally to preserve human life and uphold human dignity. But those articulations fail to grapple with the fact that, in practice, the counterterrorism system seeks primarily to suppress terrorism and support to terrorism. And, in doing so, the counterterrorism structure often embraces definitions of “terrorism” and “support to terrorism” that – despite purported shared core normative commitments – sweep in impartial humanitarian activities.

In these ways, an irreconcilable incompatibility between the current counterterrorism architecture and the humanitarian imperative appears to have arisen. The latter compels activities that the former either begrudgingly tolerates or outright proscribes. While securing respect for, protection of and fulfillment of human rights are increasingly seen as necessary elements to create the conditions conducive to suppressing terrorism, the provision of impartial humanitarian activities in counterterrorism contexts often remains intolerable under currently enacted security rationales.

How the humanitarian community has responded

The humanitarian community has mainly relied on four responses to the counterterrorism structure's growing influence on the humanitarian imperative. None of these responses takes as its starting point, at least not directly, that the counterterrorism architecture and the humanitarian imperative are premised on irreconcilable values. Instead, all of these responses assume, implicitly or expressly, either that the clash does not exist or that, if it does, it can be worked around through technocratic means.

One response is to call for dialogue with counterterrorism actors. An assumption here is that if counterterrorism actors were made aware of impartial humanitarianism, then those actors would be open to changing their approach to accommodate humanitarian concerns. The initial call is typically followed, sometimes over and over, by more appeals for more dialogue. In our experience, relatively few durable concrete pro-humanitarian-imperative changes have resulted from this dialogue; quite the contrary. Further, in practice, rather than changing how counterterrorism systems operate, these engagements often result in humanitarian actors accepting counterterrorism's conceptual frameworks and forcing humanitarian activities to fit into notions of “exceptions” or “exemptions”. In this sense, humanitarian actors are left to conduct a rearguard preservative action. A relative “win” by the humanitarian community, such as the adoption of a limited sectoral “carve-out” in a particular counterterrorism instrument, usually already reflects a compromise on impartial humanitarian values.13

A second approach is to seek to prove the adverse impact of counterterrorism measures on impartial humanitarian activities. In our experience, in the eyes of numerous actors focused on suppressing terrorism, a lack of such evidence is too often interpreted as evidence of the absence of any adverse impact whatsoever. Yet for humanitarian actors, formulating, documenting, validating and revealing the necessary proof entails numerous risks, data-collection difficulties and interpretive challenges. Perhaps the most significant risk is that, in doing so, at least in certain contexts, humanitarian actors may be accumulating evidence of their own breach of counterterrorism measures.

A third approach relates to humanitarians’ attempts to appease counterterrorism regulators by proving that they are “serious” about compliance with counterterrorism measures. Those efforts include things like emphasizing that “diversion” runs counter to humanitarian principles and reallocating humanitarian resources to create internal counterterrorism policies. Meanwhile, several of the “red lines” defined by humanitarian actors earlier in the encounter with the counterterrorism system have been repeatedly crossed. These have included vetting of beneficiaries against blacklists and agreeing to submit certain categories of prospective beneficiaries to preapproval from authorities.

A fourth response – and one that merits heightened attention, from our perspective, due to its relative strategic import – is to ground the humanitarian imperative in the language and concepts of IHL. In practice, for example, the current approach to seeking “carve-outs” is largely an offshoot of IHL-related arguments. A primary impetus in invoking IHL is to link the humanitarian imperative to legal obligations relating to the provision of impartial humanitarian services for civilians in need and fighters hors de combat, the protection of which in contemporary armed conflicts is deeply rooted in IHL.

Yet we have come to see that framing humanitarian-imperative claims primarily in IHL invites States to assess those IHL provisions – and, thereby, the legitimacy of IHL-linked impartial humanitarian activities – relative to other international legal obligations. The pull of counterterrorism obligations flowing from Security Council decisions, in particular, has disturbed the course of IHL protections for impartial humanitarian activities. Amid the characterizations of “joint” armed-conflict-and-counterterrorism contexts, international actors have increasingly staked out legal and political positions that elevate terrorism-suppression concerns over respect for the part of IHL that protects the humanitarian imperative.

By itself, IHL is not well suited to address the totality of these concerns. For example, IHL does not speak with great specificity to States when they act as humanitarian donors. Indeed, even perfect compliance with IHL will not overturn the panoply of counterterrorism-based constraints on impartial humanitarian activities. In this context, references to IHL in counterterrorism instruments may seem salutary on the surface in that those invocations remind States of IHL obligations amid a welter of counterterrorism measures. Yet, paradoxically, if current trajectories continue, those IHL references may ultimately serve in practice to empower technocratic security bureaucracies to see and assess IHL through a counterterrorism lens.14 The formal status of Security Council-decided counterterrorism obligations plus the overwhelming “hard” security narrative combine to create a danger that IHL will be interpreted in ways that will subvert its core humanitarian purposes. Seen from this perspective, the problems in this area do not arise from a doctrinal conflict that is resolvable through sophisticated lawyering.

In sum, for those seeking to safeguard the humanitarian imperative, a retreat into legalism invites both a category error and a strategic error. Instead, a finely calibrated balance is warranted: one that underscores the vital importance of compliance with IHL but does not see IHL as a cure-all.

How to secure greater respect for impartial humanitarian activities

Two decades after the Security Council's first foray into global counterterrorism “legislation”, a bolder and arguably riskier approach is warranted. In our view, as we asserted above, a clash of values – not merely doctrinal discord – is driving the practical predominance of the counterterrorism structure over impartial humanitarianism. We sense that this values clash is increasingly pronounced. Further, we see existing responses aimed at safeguarding impartial humanitarian activities as inadequate. Supposing we are correct, arguably a precondition for securing greater respect for impartial humanitarian activities is to champion humanitarian values on their own terms. A handful of potential pathways – which may overlap in various respects – may be put forward.

For example, one way to champion humanitarian values on their own terms is to reject counterterrorism-rooted calls to suppress needs-based aid and protection in armed conflicts involving terrorists. Impartiality serves as one of the humanitarian imperative's primary ideological justifications. That justification, in turn, may help undergird political practices, enlist popular support, and provide a cornerstone of a newly configured normative and operational strategy. Advocating for impartiality may also help bring greater humanitarian consciousness to governments and civil society. Further, it may provide more opportunities to exert moral and intellectual leadership and forge political alliances. This avenue's relative success or failure may turn partly on making and fulfilling commitments to engage, now and in the years to come, in normative contestation and political education to (re)build cultures that privilege and prioritize respect for the humanitarian imperative.

A second possible course is to embrace, ground and reconfigure “security”-centred concepts and frameworks in terms of strict respect for impartial humanitarian activities. Doing so might involve formulating arguments that expressly articulate and foreground the requirements and interests of civilian populations in need and fighters hors de combat. A core idea underlying this avenue is that a special and enduring strength of the humanitarian imperative is that it contributes to a human dignity-centred notion of security by embodying values, attitudes and practices that aid and protect people in need amid the disorder and deprivations of armed conflict. Attempts to develop conceptual frameworks capable of dislodging today's predominant “hard” counterterrorism-related security systems may draw upon decades' worth of research and policy engagement in the field of human security (among others).

A third potential avenue is to confront and contest constraints on impartial humanitarian activities arising from counterterrorism rationales. A starting point here may be that contemporary interpretations of “terrorism” are inseparable from debates as to its existence. Advocating for the humanitarian imperative may entail forming and expressing positions, including in respect of concrete cases, that proscribed conduct does not meet a legitimate definition of “terrorism”. It may also involve, more fundamentally, arguing that certain definitions of “terrorist” conduct are illegitimate because they sweep in justifiable – even morally required – activities, including the provision of impartial humanitarian services.

We anticipate a response from some pro-humanitarian-imperative actors that the most to hope for in the current geopolitical environment is a kind of negotiated compromise, perhaps one that could hold until more favourable conditions exist to address some of the fundamental framings of the counterterrorism system. Even if we are right in diagnosing the problem, they might argue, far less is to be gained and far too much is at risk of being lost by pursuing our suggested approach.

We are not suggesting a wholesale withdrawal of the existing responses. We call instead for a clear-eyed acknowledgement of irreconcilable values and reflection on how to address that tension to safeguard impartial humanitarianism in relation to the counterterrorism structure. We do not assert that recognizing the values clash will alone suffice to prevent another decade marked by an increasing elevation of counterterrorism concerns over impartial humanitarianism. However, a failure to take account of – and think creatively and clearly about – the conflict we describe here seems like a recipe for further constraints on impartial humanitarian activities. Further, the call for a renewed approach to this issue and recognition of how much the counterterrorism framing has come to dominate impartial humanitarianism must be made primarily to and through States. That is because the necessary change cannot come solely or even mainly from humanitarian organizations or counterterrorism bodies; these matters require State action.

Conclusion

We are not so naïve as to think that the world has ever witnessed pristine observance of the normative commitments animating impartial humanitarian activities. At least for as long as it has been enacted in IHL, the humanitarian imperative has been contested – and unfortunately, in numerous instances, forcibly rejected – on theoretical, practical and tactical bases. Nevertheless, we think that the core values underlying impartial humanitarianism ought to have a greater role today in shaping how we all see each other and what we all owe to each other in armed conflicts, including conflicts that double as counterterrorism contexts.

The counterterrorism system's relative authority is increasingly grounded in political, economic and legal institutions. States regularly devise strategies, enact laws and allocate funding to counter terrorism. Despite the proliferation of “joint” armed-conflict-and-counterterrorism contexts, it is exceptional for these measures to take account of, let alone safeguard, the humanitarian imperative – quite the opposite. Further, while several States that have invested substantially in building the global counterterrorism architecture also provide the bulk of financial support for impartial humanitarian activities, that latter support is typically conditioned on strict compliance with prohibitive counterterrorism policies. New laws, policies and institutions aimed, first and foremost, at securing respect for the humanitarian imperative are relatively rare. The core values of impartial humanitarianism may be at risk of dropping out of mainstream support and political legitimacy and becoming associated with a “radical” ideology. Whether impartial humanitarianism is ultimately elevated, suppressed or reconfigured (or some combination thereof) will profoundly shape how populations experience armed conflicts in the years to come.

If the current trajectory continues, two possibilities seem likely to come to pass. One is that counterterrorism measures may further constrain the practical scope of impartial humanitarian activities. A second is that an ever-expanding counterterrorism system will ultimately redefine what constitutes legitimate humanitarian activities. Of course, we cannot foresee what might result. But we can begin to glimpse what it might look like by referring to existing requirements in certain contexts, such as obtaining preapprovals from governmental authorities to disperse life-saving assistance to particular civilian populations and using retinal scans on relief recipients.

Currently, the humanitarian community seeks to devise technocratic workarounds to safeguard as many of their services as possible in counterterrorism contexts. From our perspective, these efforts – even if successful – paper over bigger fault lines. Respect for impartial humanitarian activities is increasingly being framed in terms of whether those services comport with the counterterrorism architecture. In the process, some pillars of impartial humanitarian activities are at risk of political, legal and cultural erosion. It is time to articulate and enact a broader vision that elevates the values and ethical commitments that animate and compel the humanitarian imperative.

• 1UN Security Council Resolution 2462 (209), para. 24.
• 2See UN Security Council, Meeting on the Promotion and Strengthening of the Rule of Law in the Maintenance of International Peace and Security: International Humanitarian Law, 8499th Meeting, 1 April 019, UN Doc. S/PV.8499.
• 3The overlap typically occurs when an international or a non-international armed conflict involves an individual or an entity characterized as a “terrorist” under a relevant framework. Those frameworks may be rooted in one or more international or internal measures aimed at countering terrorism. Examples of such frameworks include the UN Security Council's terrorism-suppression sanctions against the Islamic State in Iraq and the Levant (ISIL), Al-Qaida and associated individuals, groups, undertakings and entities, as well as a diverse array of domestic anti-terrorism measures adopted by specific States. See UN Security Council Resolutions 1267 (1999), 1989 (2011) and 225 (2015) et seq. Since 2001, these types of “joint” scenarios, marked by overlapping armed-conflict situations and counterterrorism contexts, have occurred in at least a dozen States and have involved the military, political or financial participation of dozens of additional States.
• 4We focus on situations of armed conflict that double as counterterrorism contexts. While not our focus here, it is important to also bear in mind that impartial humanitarian activities may be taken in relation to disasters and situations of violence other than armed conflicts as well.
• 5See, e.g., ICRC, Commentary on the Third Geneva Convention: Convention (III) Relative to the Treatment of Prisoners of War, 2nd edition, 2020, paras 82–6, available at: https://ihl-databases.icrc.org/ihl/full/GCIII-commentary (all internet references were accessed in September 2021).
• 6In using this term, we mean a set of moral commitments and dispositions that are not necessarily coterminous in all respects with the definition of impartiality as an element of humanitarian activities in line with IHL and humanitarian-policy frameworks.
• 7Fionnuala Ní Aoláin, Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Impact of Measures to Address Terrorism and Violent Extremism on Civic Space and the Rights of Civil Society Actors and Human Rights Defenders, UN Doc. A/HRC/40/52, 1 March 2019.
• 8See UN Security Council Resolution 1267 (1999) et seq. and Resolution 1373 (2001) et seq.
• 9UN Charter (145), Art. 25.
• 10Accordingly, in this opinion note, our use of the term “terrorist” is not meant to weigh in on the validity of any specific international or domestic legal definition pertaining to such a characterization of a person, entity or form of conduct, nor do we mean to characterize the actual legal status of any particular individual or entity.
• 11See, e.g., ICRC, Commentary, above note 5, paras 833–5.
• 12See, e.g., Lindsay Hamsik and Lissette Almanza, Detrimental Effects: How Counter-terror Measures Impede Humanitarian Action – A Review of Available Evidence, InterAction, April 2021, available at: https://www.interaction.org/wp-content/uploads/2021/04/Detrimental-Impa…; ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, October 2019, pp. 59–61; available at: https://shop.icrc.org/download/ebook?sku=4427/002-ebook; Norwegian Refugee Council, Principles Under Pressure: The Impact of Counterterrorism Measures and Preventing/Countering Violent Extremism on Principled Humanitarian Action, 2018, available at: https://www.nrc.no/globalassets/pdf/reports/principles-under-pressure/n…; Jessica S. Burniske and Naz K. Modirzadeh, Pilot Empirical Survey Study on the Impact of Counterterrorism Measures on Humanitarian Action, Harvard Law School Program on International Law and Armed Conflict (PILAC), March 2017, available at: https://pilac.law.harvard.edu/pilot-empirical-survey-study-and-comment; Kate Mackintosh and Patrick Duplat, Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action, UN Office for the Coordination of Humanitarian Affairs and the Norwegian Refugee Council, July 2013, available at: https://www.nrc.no/globalassets/pdf/reports/study-of-the-impact-of-dono….
• 13See, e.g., Dustin A. Lewis and Naz K. Modirzadeh, Taking into Account the Potential Effects of Counterterrorism Measures on Humanitarian and Medical Activities: Elements of an Analytical Framework for States Grounded in Respect for International Law, Harvard Law School PILAC, May 2021, pp. 16–17, available at: https://pilac.law.harvard.edu/take-into-account-report-web-version.
• 14A legal and policy debate has emerged concerning the possibility of endowing a non-judicial, technocratic security entity (such as the Counter-Terrorism Committee Executive Directorate, which is a special political mission of the UN Security Council) with the power to interpret and assess IHL compliance – including as relates to protections for impartial humanitarian services – through an institutional counterterrorism lens. See, e.g., Dustin A. Lewis, Naz K. Modirzadeh and Jessica S. Burniske, The Counter-Terrorism Committee Executive Directorate and International Humanitarian Law: Preliminary Considerations for States, Legal Briefing, Harvard Law School PILAC, March 2020; Dustin Lewis and Naz Modirzadeh, “Counterterrorism and Humanitarian Action: Will 2020 Be a Turning Point for International Humanitarian Law at the United Nations?”, Lawfare, 31 March 2020, available at: https://www.lawfareblog.com/counterterrorism-and-humanitarian-action-wi….