Suppressing Foreign Terrorist Fighters and Supporting Principled Humanitarian Action: A Provisional Framework for Analyzing State Practice

Abstract

SUPPORTING PRINCIPLED HUMANITARIAN ACTION IN COUNTERTERRORISM CONTEXTS Meanwhile, many states continue to fund and otherwise throw their support behind life-saving humanitarian relief for civilians in armed conflicts around the world-including conflicts involving terrorists. Yet, in recent years, members of the humanitarian community have been increasingly aware of the real, perceived, and potential impacts of counterterrorism laws on humanitarian action. Part of their interest stems from the fact that certain counterterrorism laws may, intentionally or unintentionally, adversely affect principled humanitarian action, especially in regions where terrorist groups control territory (and thus access to civilians, too). The effects of these laws may be widespread-ranging from heightened due diligence requirements on humanitarian organizations to restrictions on travel, from greater government scrutiny of national and regional staff of humanitarian organizations to decreased access to financial services and funding. Counterterrorism measures may also in principle give rise to a "chilling effect" on humanitarian action. That is, humanitarian actors may choose not to undertake life-saving relief schemes that they otherwise would due to fears of violating counterterrorism laws and policies. Given the awareness of the risks of counterterrorism laws and regulations to humanitarian action by the time Resolution 2178 was passed, one might have expected the Security Council and states to incorporate explicit and specific protections for humanitarian action, or to reaffirm expressly their commitment to humanitarian action in areas controlled by listed entities. This did not occur in Resolution 2178. One reason might be that those involved in crafting the resolution and those on the counterterrorism portfolios were not involved in the same discussions as those from the humanitarian or aid divisions. The Security Council did, however, expressly require that U.N. member states prevent and suppress the recruiting, organizing, transporting, or equipping of FTFs consistent with international humanitarian law (IHL). In doing so, the Council implicitly required states to discharge their FTF obligations in a manner that respects the various forms of humanitarian action protected by IHL. The Security Council did not, however, expressly require that states discharge each of the other key FTF obligations entailed in the resolution consistent with IHL. Supporting Principled Humanitarian Action in Counterterrorism Contexts Meanwhile, many states continue to fund and otherwise throw their support behind lifesaving humanitarian relief for civilians in armed conflicts around the world-including conflicts involving terrorists. Yet, in recent years, members of the humanitarian community have been increasingly aware of the real, perceived, and potential impacts of counterterrorism laws on humanitarian action. Part of their interest stems from the fact that certain counterterrorism laws may, intentionally or unintentionally, adversely affect princ...

The legal protection of persons living under the control of non-State armed groups

“…100 With regard to the first two organs, analysts have taken this practice as a recognition that the conduct of at least some NSAGs "can amount to violations or abuses of human rights", even though it cannot be said that this State practice is itself sufficient to endow NSAGs with "humanrights obligations in general under international law". 101 It has further been concluded that the practice of States in the Human Rights Council indicates that "the international community increasingly holds [armed non-State actors] accountable for human rights violations, despite legal uncertainties" such as "how and to what extent" NSAGs are bound by human rights law. 102 Notwithstanding this lack of legal clarity, various UN special procedures or commissions of inquiry have applied human rights law to the conduct of NSAGs.…”

“Foreign Terrorist Fighters”: A Human Rights Approach?

“…The expanded prohibitions, crimes and restrictions and increased legal and regulatory scrutiny surrounding ftfs exacerbate the problem significantly. 68 The implications for human rights and humanitarian protection are profound and wide-reaching. ftf provisions jeopardise the ability of medical personnel to treat "fighters" wounded on the battlefield, of humanitarian workers and hrds' to engage with groups perceived as "terrorist" for example to gain access and provide relief to civilian populations, and the willingness of donors and financial institutions to provide essential funds and services, particularly in situations of armed conflict where they may be most needed.69 Real concerns have emerged that responses apparently directed to ftfs, under cover of Security Council resolutions, may render essential humanitarian work practically impossible and undermine human rights defence, by stigmatizing persons or causes disfavoured by the state.…”