Open Access Research Article
UNVEILING THE LEGAL BATTLEFIELD: NAVIGATING THE INTERPLAY BETWEEN COUNTER-TERRORISM MEASURES AND INTERNATIONAL HUMANITARIAN LAW
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Article Details
"UNVEILING THE LEGAL
BATTLEFIELD: NAVIGATING THE INTERPLAY BETWEEN COUNTER-TERRORISM MEASURES AND
INTERNATIONAL HUMANITARIAN LAW"
AUTHORED BY - TANYA SHARDA
BA. LLB (1st year)
OP JINDAL GLOBAL LAW SCHOOL
Abstract
This research paper explores the
intersection between counter-terrorism frameworks and international
humanitarian law with the aim of looking into existing practices, and policy
options for States to implement counterterrorism measures in compliance with
international humanitarian law, focusing on the legal framework governing the
use of force in counter-terrorism operations and the challenges associated with
ensuring compliance with human rights standards. The analysis emphasizes the
impact on humanitarian action, highlighting the need for a nuanced approach
that preserves both security imperatives and fundamental human rights. The
study calls for a careful calibration of counter-terrorism laws to avoid
impeding humanitarian efforts and advocates for unimpeded access to
conflict-affected regions, emphasizing the delicate balance required at the
intersection of counter-terrorism and IHL.
As the world grapples with the evolving
threat of terrorism, nations employ various strategies encompassed in
counterterrorism operations, acknowledging armed conflicts under IHL. The study
underscores the increased interoperability between international humanitarian
law and terrorist activities, with a surge in armed groups engaged in
non-international conflicts categorized as terrorist organizations.
The United Nations Security Council,
through Resolution 1373, urges states to enhance international cooperation in
preventing and suppressing terrorism, emphasizing the importance of compliance
with IHL. However, the implementation of counterterrorism measures presents
challenges to humanitarian action, impacting access to conflict zones and
posing constraints on aid delivery.
Keywords- International humanitarian law,
Counter-Terrorism, Geneva Convention, Security Council
Introduction
The entire world confronted a new
form of violence known as terrorism at the very beginning of the twenty-first
century. The frameworks that nations use to combat terrorism are known as
"counterterrorism operations," and they are acknowledged as armed
conflicts under International Humanitarian Law. The term "counterterrorism
operation" refers to the methods, military strategies, tactics, and
techniques that the government and intelligence services undertake in the
battle against terrorism. Interoperability between international humanitarian
law and terrorist activities increased. international humanitarian law,
sometimes referred to as the "law of war," governs how parties to an
armed conflict engage and recognises the right of humanitarian actors to offer
vital assistance to war victims. A major part of international humanitarian law
is contained in the four Geneva Conventions of 1949.[1] In
recent years, there has been an upsurge in the number of armed groups that are
engaged in non-international armed conflicts that have been categorised as
terrorist organisations. Because of the consequences of complex crises
including terrorist activities in the context of armed conflict sometimes
transcend national boundaries, they also have a severe influence on regional or
global peace and security as they pose the danger of engulfing entire areas in
armed bloodshed. To combat this kind of violence, states and intergovernmental
organizations have put into effect what are known as counterterrorism measures.
Security Council adopted Resolution
1373, which contains provisions demanding States to supplement international
cooperation by taking additional measures to prevent and suppress, within their
borders, the financing and preparation of any acts of terrorism, as well as to
criminalize, prosecute, and punish any activities that provide support to the
person identified as a terrorist. Council resolutions on counter-terrorism consistently
require Member States to implement counter-terrorism measures in accordance
with international law, including international humanitarian law. In its
relevant resolutions, the Council also reaffirms that those responsible for
terrorist acts and for violations of international humanitarian law or
violations or abuses of human rights must be held accountable. The impact of
armed conflict on civilians, particularly terrorism, has been minimized as a
result of the increased regulation of the conduct of armed non-state actors
under international humanitarian law about protecting civilians.[2]
In compliance with Security Council
resolutions, states are required to bring charges against terrorists for
offenses that amount to grave breaches of international humanitarian law and
serious breaches or abuses of human rights. However, impunity for abuses and
violations committed by State or non-State actors is frequently the result of
weak, insufficient, or nonexistent rule-of-law institutions and the pervasive
nature of violence and criminality. Generally, international humanitarian law
governs acts of violence in armed conflict, both legal and illegal. IHL
provides particular guidelines on terrorism, including prohibitions
against acts or threats of violence that incite fear among civilians, such as
mass killings, the use of human shields, and the use of explosive weapons in
crowded areas.[3]
The impact of counter-terrorism measures on humanitarian action
Armed conflicts frequently have
humanitarian repercussions and are the primary cause of complex catastrophic
events that arise from an amalgamation of man-made and natural factors. Violent
actions against international humanitarian law by parties to a rivalry,
including terrorist organizations, may escalate humanitarian crises and
jeopardize humanitarian efforts by putting humanitarian actors in danger and
making it more difficult for them to carry out their work.[4]
The Security Council has expressed
concern about the "adverse impact of such violence, including on
humanitarian access"[5] as
well as the "long-term effects resulting from such attacks for the general
public and the healthcare systems of the countries concerned"[6]
and frequently denounced attacks on medical and humanitarian personnel, their
means of transportation and equipment, hospitals, and other medical facilities
entitled to protection under international humanitarian law. As a result, it
has requested that all parties to an armed conflict strictly adhere
to their duties to respect and safeguard humanitarian workers and supplies
utilised in humanitarian assistance operations as stipulated by international
humanitarian law.[7] Under
some situations, domestic counterterrorism laws have either made these kinds of
operations illegal or created ambiguity in the law regarding their extent.
Humanitarian organizations such as
the International Committee of the Red Cross (ICRC) have
issued warnings about a chilling effect in this situation, saying that it
“hinders or prevents frontline responders from reaching populations in need.”[8]
The provision of humanitarian aid to victims of terrorism, armed conflict, and
other serious breaches or violations of human rights or serious infringements
of international humanitarian law may be impacted by such constraints.
Broadly conceived or badly
implemented counterterrorism measures can have a detrimental effect on the
capacity of humanitarian actors to function in armed conflict situations
including terrorist groups, and therefore on the people who require
humanitarian protection and aid. The consultations sought input on the impact
of counter-terrorism related measures taken by (a) host States; (b) States of
registration of humanitarian organizations; (c) States of nationality of staff
of humanitarian organizations; and (d) donor States. Information gathered
during the discussions facilitated by Office for the Coordination of
Humanitarian Affairs (OCHA) revealed that humanitarian
organizations frequently saw counterterrorism measures having an impact on
their activities in a variety of settings. Humanitarian organizations informed
OCHA about direct restrictions on humanitarian activities in certain areas or
for certain populations, originating from (a) host Governments, through
national rules or practices; (b) donor agencies, through funding conditionality
or unilateral decisions or policies; and (c) jurisdictions other than the host
or donor States, through various laws and sanctions regulations. [9]
The speed and efficiency with which
humanitarian action could be carried out was significantly impacted by
procedures related to the control and monitoring of humanitarian operations
with the goal of preventing aid diversion, according to reports from
humanitarian organisations to Office for the Coordination of Humanitarian Affairs.
This resulted in items being damaged or spoiling, as well as higher costs for
implementing organisations. States occasionally placed limitations on the
amount of specific goods, like fuel. For communities that are already
struggling, the effects may be fatal. In one instance, these limitations
resulted in the hospital's temporary shutdown since there was not enough
gasoline available. In certain situations, there has also been a reduction in
the freedom of movement for humanitarian workers, often combined with
heightened monitoring of local employees, partners, and other individuals
connected to humanitarian organisations. According to the consulted
organizations, counter-terrorism-related donor conditionality increasingly
included direct restrictions on the ability of funding-recipient humanitarian
organizations to engage with specific groups through “no-contact policies”.
Humanitarian organisations have pointed out that the pool of qualified local
contractors and service providers may be significantly reduced as a result of
donors' counterterrorism-related risk management criteria and clearance
procedures. In rare instances, the government could forbid regional suppliers
or service providers from offering goods or support to aid agencies functioning
in regions where officially recognised non-state armed groups have a sizable
presence and influence.[10]
Challenges posed by counterterrorism measures to
the humanitarian
Parties to a conflict are required
under international humanitarian law to permit and facilitate the prompt and
unimpeded delivery of impartial humanitarian aid to civilians in need, subject
to appropriate controls. Since 9/11 attacks, counter-terrorism measures adopted
by states has raise a chains adverse impact on humanitarian assistance in armed
conflict involves by non-state actors designated as terrorist. The states
implement security council resolutions 1373 (2001) and resolution 2178 (2014)
under chapter VII of UN Chapter. For example, state like United States and
Australia have adopt anti-terrorism framework that may interpreted as
criminalizing certain form of humanitarian assistance and protection as well.
Numerous laws are intended to be applicable outside national borders and
without regard to the nationality of the perpetrator or the victims. Generally,
these rules forbid giving any kind of direct or indirect assistance to a
terrorist group.[11]
Due to the legal consequences and the
impact of such restrictive laws, the growing administrative difficulties placed
on humanitarian actors have caused them to self-limit. Thus, in certain
locations where they are required, the humanitarian players stop their work.
The civilians, their belongings, and other hors de combat are the victims of
those limitations. Additionally, they prevent cooperation and coordination
among these humanitarian players out of fear of being terrorists' sympathisers.
International humanitarian law becomes obstructed, as do future peace talks and
attempts at reconciliation, if all legitimate actions of war are classified as
terrorist activities. Granted that the Islamic State group and its linked armed
organisations, like Boko Haram, openly reject International Humanitarian Law
(IHL) and the principles that underpin it, it is true that the debate regarding
the incrimination of all acts by non-state groups is difficult to hear these
days. According to the International Committee of the Red Cross (ICRC), it is
critical to guarantee that, in terms of IHL compliance, counterterrorism
measures do not jeopardise efforts to engage with organised armed non-State
organisations.[12]
Legal Framework for Regulating the Use of Force in Counter-Terrorism
Operations
Rules of international humanitarian
law governing non-international armed conflict include article 3 common to the
1949 Geneva Conventions and relevant rules of customary international law
applicable in non-international armed conflict. Common article 3 applies to all
non-international armed conflicts and two criteria must be fulfilled. Firstly,
the hostilities must reach a minimum level of intensity. Secondly, armed groups
involved in the conflict mut be considered as parties to the conflict, and
possess organized armed forces.[13]
Common article 2 of the four Geneva
Conventions states that for violence to be designated as an IAC conflict, it
must occur when one or more States use armed force against another State,
regardless of the motivations behind the conflict or the severity of the
altercation. Even in the absence of open hostilities, relevant international
humanitarian law laws may still be in effect. There is no need for a formal
declaration of war or circumstance acknowledgment.[14]
Additional Protocol II to the 1949
Geneva Conventions applies to a subcategory of non-international armed
conflicts which take place between government armed forces and dissident armed
forces or other organized armed groups which, under responsible command,
exercise such control over a part of the State’s territory as to enable them to
carry out sustained and concerted military operations and to implement the
Protocol.
Self-defense in international law
refers to the inherent right of a State to use of force in response to an armed
attack. Self-defense is one of the exceptions to the prohibition against use of
force under article 2(4) of the UN Charter and customary international law.
However, whether the armed attack that gives rise to self-defence should
originate from another state (as opposed to an armed group) and whether the
attack should actually materialize to lawfully invoke self-defense are ongoing
conundrums for scholars. The concept of self-defence and defence of others is
also used in criminal law as a defence to justify a necessary and proportionate
use of force against an unlawful attack. Such conduct by civilians does not
constitute direct participation in hostilities.[15]
The concept of legality in criminal
law necessitates that the implementation and consequences of laws be reasonably
predictable. In order to give effective protections against arbitrary
prosecution and punishment, as well as to enable those impacted by the law to
anticipate the repercussions of their actions, this needs a sufficient level of
clarity and accuracy. In this regard, the Counter Terrorism Committee has
repeatedly underlined the necessity for States to guarantee adherence to the
legality principle and to "adopt a clear and precise definition of
terrorism that corresponds to the requirements of the international
counter-terrorism instruments to which they are Parties, the relevant Security
Council resolutions, and other applicable international law norms and
standards, including international human rights law." Many countries have
attempted to reduce potential conflicts between international humanitarian law
and local counterterrorism frameworks by including armed conflict or
humanitarian exemption provisions into their domestic legislation, including
criminal codes. Certain states have incorporated provisions that exclude
actions carried out in the context of an armed conflict and in accordance with
applicable international humanitarian law from the purview of crimes connected
to terrorism. Principled humanitarian actions carried out in compliance with
relevant international humanitarian law have been excluded from the definition
of terrorism-related offences by other authorities.[16]
Relationship between international humanitarian law and the
counter-terrorism legal framework
National counterterrorism laws have
the authority to criminalise actions that are not covered by IHL, such as
violating the environment, compromising public safety without causing harm to
individuals, or committing security-related offences in occupied territory or
non-international armed conflicts. Compared to international humanitarian law,
national law frequently covers offences related to terrorist organisations,
providing or receiving terrorist training, and possessing deadly goods with the
intent to commit terrorism before a crime is undertaken. More comprehensive and
extensive duties to suppress terrorist acts are placed on States by international
counterterrorism agreements and Security Council resolutions than they are
under International Humanitarian Law. There is an obligation to "extradite
or prosecute" and to give mutual aid only in cases of "grave
breaches" of international humanitarian law (IHL) in international armed
conflict; other war crimes in international conflict or other war crimes in
non-international conflict are not subject to this obligation.
IHL does not include the same duty to
prevent violations that counterterrorism legislation does. States are required
under the counterterrorism agreements to communicate information, take
"all practicable measures to prevent preparations" for offenses
inside or outside of their borders, and coordinate administrative and other counterterrorism
actions. In comparison to war crimes legislation, national counterterrorism
laws may be more appealing for dealing with terrorist offenders since they
frequently feature robust, specific law enforcement capabilities, particularly
during the investigation and prosecution stages.[17]
Conclusion
This comprehensive research paper
seeks to provide a thorough examination of the impact of counter-terrorism
measures on international humanitarian law, addressing the challenges of
ensuring compliance with human rights standards. This study aims to contribute
valuable insights to the ongoing discourse on striking a delicate balance
between safeguarding nations and upholding the universal principles that
safeguard human dignity. Regardless of whether the act was carried out during
or after an armed conflict, counterterrorism generally targets the subset of
violence known as terrorism. Whether or if an armed struggle is also considered
terrorism, it is covered by international humanitarian law.
Therefore, the paper addresses
some issues pertaining to the effect of counterterrorism measures on
humanitarian action carried out in situations of armed conflict in a
way compliant with international law, without offering a comprehensive
analysis. States must operate under the confines of the legal framework, which
is defined by the United Nations Charter and international humanitarian law, in
order to effectively address the challenges posed by counterterrorism. This
framework's essential elements are the ban on the use of force and the right to
self-defence.
It is crucial to take into account
actions that will improve global collaboration, fortify accountability
frameworks, and promote a sophisticated comprehension of the fine balance that
must be struck between security requirements and human rights when determining
the path forward. Fundamentally, the way that counterterrorism tactics affect
international humanitarian law necessitates reevaluating our goals and
reaffirming our dedication to the values that guide our common humanity. In the
face of adversity, the international community must uphold the fundamental
principles of the ideals we want to defend by strengthening the legal
structures that protect human rights. This is our responsibility as we
negotiate the challenges presented by the always changing danger landscape. Not
only is it morally and legally necessary to strike a careful balance between
security and human rights, but our decisions will also determine the future
course of a society in which justice, liberty, and dignity are not given up on
the altar of fear.
[1] ICRC, What is International
Humanitarian Law, (2004), Available at https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf.
[3] ICRC, “International Humanitarian
Law and the challenges of contemporary armed conflicts” Report, 2015; Available
at https://www.icrc.org/en/download/file/15061/32ic-report-on-ihl-and-challenges-of-armed-conflicts.pdf
[4] See also Global survey of the
implementation of Security Council resolution 1373 (2001) and other relevant
resolutions by Member States (S/2021/972), para. 713 ff
[5] S/RES/2175 (2014).
[6] S/RES/2286 (2016), para. 1
[7] See e.g., S/RES/1502 (2003);
S/RES/1674 (2006); S/RES/1894 (2009); S/RES/2175 (2014); S/RES/2286 (2016);
S/RES/2573 (2021); S/PRST/2019/8; S/PV.7779
[8] Counter-terrorism measures must
not restrict impartial humanitarian organizations from delivering aid, International Committee of the Red Cross
(2021), https://www.icrc.org/en/document/counter-terrorism-measures-must-not-restrict-impartial-humanitarian-organizations.
[9] UNSCC-
CTED, The interrelationship between counter-terrorism frameworks and
international humanitarian law, 18 (2022), https://www.un.org/securitycouncil/ctc/sites/www.un.org.securitycouncil.ctc/files/files/documents/2022/Jan/cted_ihl_ct_jan_2022.pdf.
[10] Id. at page 19
[11] Dustin A. Lewis, “Criminalization”
of Humanitarian Action Under Counterterrorism Frameworks: Key Elements and
Concerns, 112 Proceedings of the ASIL
Annual Meeting 269 (2018).
[12] Nsabimana, Contemporary Challenges
Posed by Counterterrorism Measures to IHL, SSRN Electronic Journal (2021).
Available at http://dx.doi.org/10.2139/ssrn.3876853
[13] ICTY, The Prosecutor v.
DuskoTadic, Judgment, IT-94-1-T, 7 May 1997, para. 561-568
[14] Common article 2 to the four
Geneva conventions
[15] Self-defence | How does law
protect in war? - Online casebook, casebook.icrc.org, https://casebook.icrc.org/a_to_z/glossary/self-defence.
[16] UNSCC-
CTED, The interrelationship between counter-terrorism frameworks and
international humanitarian law, 18 (2022), https://www.un.org/securitycouncil/ctc/sites/www.un.org.securitycouncil.ctc/files/files/documents/2022/Jan/cted_ihl_ct_jan_2022.pdf.
[17] Counter-Terrorism
in the International Law Context COUNTER-TERRORISM LEGAL TRAINING CURRICULUM 1
A D V A N C E C O P Y, https://www.unodc.org/pdf/terrorism/CTLTC_CT_in_the_Intl_Law_Context_1_Advance_copy.pdf.
Article Information
UNVEILING THE LEGAL BATTLEFIELD: NAVIGATING THE INTERPLAY BETWEEN COUNTER-TERRORISM MEASURES AND INTERNATIONAL HUMANITARIAN LAW
Authors: TANYA SHARDA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/06
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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