Recent HPG/ODI and ICRC reports concerning counterterrorism measures and humanitarian action

"The application of counter-terrorism legislation and other measures to humanitarian operations is challenging principled humanitarian action." So conclude Sara Pantuliano, Kate Mackintosh, and Samir Elhawary (with Victoria Metcalfe) in an important policy brief published last week by the Humanitarian Policy Group of the Overseas Development Institute. The authors outline, among other things, how international and domestic counterterrorism laws and other measures "have increased operating costs, slowed down administrative functions and operational response, curtailed funding and undermined humanitarian partnerships." Partly through case studies on Somalia and Gaza, the authors portray key concerns that counterterrorism measures present to individuals involved in humanitarian assistance in these situations. You can read more about the policy brief in a Guardian article, and you can watch a panel discussion on the brief online

Also this month, the International Committee of the Red Cross published its third report on "International Humanitarian Law (IHL) and the Challenges of Contemporary Armed Conflicts." (The previous two were published in 2003 and 2007, respectively.) According to the ICRC, "These reports aim to provide an overview of some of the challenges posed by contemporary armed conflicts for IHL, to generate broader reflection on those challenges and to outline ongoing or prospective ICRC action, positions and interest." In this year's report, the ICRC identified "The Conflation of IHL and the Legal Framework Governing Terrorism" as one of the challenges. As with the HPG policy brief (and with a February 2011 Working Paper by HPCR), the ICRC's report identifies a range of adverse impacts counterterrorism measures may have on obtaining and delivering humanitarian assistance in situations of armed conflict. For instance, the ICRC's report states that:
The prohibition in criminal legislation of unqualified acts of "material support", "services" and "assistance to” or "association with” terrorist organizations could thus in practice result in the criminalization of the core activities of humanitarian organizations and their personnel aimed at meeting the needs of victims of armed conflicts and situations of violence below that threshold. These could include: visits and material assistance to detainees suspected of or condemned for being members of a terrorist organization; facilitation of family visits to such detainees; first aid training; war surgery seminars; IHL dissemination to members of armed opposition groups included in terrorist lists; assistance to provide for the basic needs of the civilian population in areas controlled by armed groups associated with terrorism; and large-scale assistance activities to internally displaced persons, where individuals associated with terrorism may be among the beneficiaries.
In addition, the criminalization based on broad definitions of "support or services” to ["]terrorism" may have the effect of governments including “anti-terrorist” funding conditions or restrictions in donor agreements. The relevant funding clauses may impede the provision of humanitarian services such as those mentioned above and would thus be de facto contrary to the mandates and/or missions of humanitarian organizations.
Indeed, as further emphasized in the report, counterterrorism measures criminalizing such forms of "support" to or "association" with "terrorist organizations" raise fundamental concerns for the ICRC: "At a basic level, the  potential  criminalization of humanitarian engagement with organized armed groups designated as 'terrorist organizations' may be said to reflect a nonacceptance of the notion of neutral and independent humanitarian action, an approach which the ICRC strives to promote in its operational work in the field."
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