What are the practical and legal consequences of counterterrorism laws for humanitarian action? This paper provides 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. It highlights several factors which seem to indicate significant and possibly permanent shifts in major donors’ approaches to risk, and regulation of humanitarian assistance in situations of armed conflict involving specific non-state groups.
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. It also outlines some of the key challenges anti-terrorism laws and regulations pose to humanitarian action, and provides some questions and approaches humanitarian actors may wish to consider when facing these challenges.
- The threat of harm or criminal liability has caused many humanitarian actors to curb or halt some of their work in certain regions. Some of these challenges may become more complicated as crises become more pressing. Humanitarian actors should be aware of the challenges that may arise when counter-terrorism law intersects with humanitarian action in these quickly evolving environments.
- Government donors may be stricter in regulating the flow of their aid funds to territories under the control of listed terrorist groups who have shifted their focus towards territorial control and governmental authority (Yemen, Syria and Iraq).
- There is increased coordination among major donor governments on approaches to counter-terrorism more broadly. Major powers are exerting pressure to ensure that all states have similar counter-terrorism criminal and regulatory regimes in place, and that governments are easily able to share intelligence, enforcement strategies, and regulatory models across borders.
- In an environment of increasingly restrictive contracting and monitoring of funds from government agencies, humanitarian organisations may face stronger pressures to demonstrate to armed actors that their organisations are neutral and independent of government security policies.
- Counter-terrorism bureaucracy within the aid community itself is likely to expand as it continues to do so globally, and within individual national governments.
On the one hand, counter-terrorism laws and regulations could be said to represent one more in a long line of specific examples of the enduring and entrenched dilemmas central to the humanitarian project, especially how to act in accordance with the humanitarian principles of independence and neutrality in complex conflicts that involve terrorist groups. Yet on the other, these laws and regulations may require humanitarian organisations to face new choices about whether to accept government funding for life-saving operations, especially if – as seems possible – donor governments’ concerns about the vulnerability of the aid sector to abuse by terrorist groups continue to grow.