Three female Hamas supporters during a rally celebrating the group's victory in the Palestinian Legislative Elections Three female Hamas supporters during a rally celebrating the group's victory in the Palestinian Legislative Elections Photo credit: Samuel Aranda/Panos Pictures

Counter-terrorism laws: what aid agencies need to know

by Jessica Burniske, Naz Modirzadeh and Dustin Lewis November 2014

Over the past two decades, states and inter-governmental bodies have adopted increasingly robust counter-terrorism laws and policies.

At the same time, humanitarian crises in countries like Somalia, Mali, and Syria have reaffirmed the continued importance of principled humanitarian action. Counter-terrorism laws and humanitarian action share several goals, including the prevention of attacks against civilians and of diversion of aid to armed actors. Yet tensions between these two areas of law and policy have emerged in recent years, resulting in challenges for governments and humanitarian actors.

These include obstacles to open and frank discussions about the practical and legal consequences of counterterrorism laws for humanitarian action, especially in territories where listed armed actors control territory or access to populations in need; donors’ increasing risk aversion, which can complicate or thwart efforts by humanitarian organisations to operate in high-risk environments; recommendations by inter-governmental bodies that seek to regulate humanitarian organisations because they are perceived as likely conduits for terrorist activity; a lack of exemptions in counter-terrorism law for principled humanitarian action; the criminalisation of activity deemed essential to humanitarian action (e.g. the provision of medical assistance to wounded enemy fighters); and the increasing use of unconventional tactics, such as calling for congressional inquiries or the use of ‘naming and shaming’ campaigns to link civil society organisations with harmful activity.

Researchers and members of the humanitarian community have written about the tensions between counter-terrorism laws and humanitarian action and a recent study commissioned by the Norwegian Refugee Council and the UN Office for the Coordination of Humanitarian Affairs (OCHA) has contributed significantly to discussions regarding the practical impact of donors’ counter-terrorism measures on humanitarian action. While those discussions have provided in-depth and nuanced analysis of current legal frameworks and the dilemmas facing humanitarian actors, this paper aims to provide a brief primer on the subject and an overview of some of the most salient questions that humanitarian actors are grappling with in planning effective, principled, and lawful operations in high-risk environments.

The report is aimed at a generalist humanitarian audience; it does not explore legal concepts in great depth or detail, but rather provides readers with a survey of some of the pressing challenges facing humanitarian actors as they navigate counter-terrorism laws and policies in their work in conflicts where listed non-state armed groups control territory or access to civilians. The paper begins by outlining the legal bases for both counterterrorism law and humanitarian action, and then discusses the challenges and possible consequences of legislation for humanitarian actors. Chapter 3 outlines some of the key challenges anti-terrorism laws and regulations pose to humanitarian action, and Chapter 4 provides some questions and approaches humanitarian actors may wish to consider when facing these challenges.