International humanitarian law (IHL) is constantly being confronted with the evolution of modern warfare. A wide array of recent technologies including autonomous weapon systems has entered the stage and cyberspace has emerged as a potential new battleground. With the rise of asymmetric warfare and non-State armed groups increasingly resorting to terrorist acts, States have tightened their counter-terrorism policies. This has added considerable complexity to the delivery of humanitarian relief, particularly in non-international armed conflicts. These recent developments have serious implications for the International Committee of the Red Cross (ICRC) in carrying out its mandate to provide humanitarian protection and assistance for victims of armed conflict and other situations of violence. This blog post will restrict itself to one development in particular: the increased impact of tightened counter-terrorism measures on the work of the ICRC.

In February 2010, the US Supreme Court upheld the USA Patriot Act which prohibits any assistance, including humanitarian, to terrorist organisations. This paved the way for the prosecution of those engaged in humanitarian activities with groups or individuals labelled as ‘terrorist’ in its famous Holder vs. Humanitarian Law Project ruling. This ruling perfectly illustrates the recent tendency of States to tighten their counter-terrorism policies and to criminalise humanitarian engagement with non-State armed groups labelled as ‘terrorist’.

Due to these tightened counter-terrorism measures, delivering humanitarian assistance to the areas controlled by armed groups designated as ‘terrorist’, or training armed groups on IHL, is becoming extremely difficult. The risk of criminal prosecution or other forms of sanctions has led to a chilling effect on humanitarian activities in the form of self-censorship, and also constitutes significant hurdles in relation to funding. What is more, stricter regulations often put extra administrative burdens on humanitarian organisations, culminating in decelerated operations and increased costs. These measures also harm transparency and coordination among humanitarian organisations, since the potential risk of criminalisation has resulted in a hesitancy to share data. Inevitably, like many other humanitarian organisations, the ability of the ICRC to conduct impartial humanitarian action has been severely hampered.

The most striking example of counter-terrorism measures jeopardizing humanitarian action occurred in Somalia during the 2010-2011 famine. Many countries, most notably the US and EU Member States, cut off support and introduced demanding reporting procedures in order to avert the use of aid by the designated terrorist organisation Al-Shabaab. This challenging operating environment rendered humanitarian organisations, including the ICRC, unable to carry out their mission to protect the lives and dignity of victims of war and armed violence, specifically in areas controlled by Al-Shabaab. This inaction eventually resulted in the deaths of more than 260,000 Somalis.

When the line between terrorism and armed conflict is blurred and when the enemy becomes a terrorist, humanitarian action is most at stake. The ICRC is constantly reiterating that combatting terrorism should not be at the expense of humanitarian action, but, apparently, its pleas are to no avail. While concerns continue, the United Nations Security Council (UNSC) unanimously adopted Resolution 2462 on 28 March 2019. This Resolution invites States to take into account the effect of counter-terrorism measures on ‘exclusively humanitarian activities’ carried out by ‘impartial actors’. This is undoubtedly a step forward, since the real risk to humanitarian activities is addressed and certain safeguards for such activities are incorporated in an international legally binding document. Time will tell to what extent this Resolution will have an impact.