The Politicised and Criminalised Contexts of Counterterrorism2020-07-29T14:11:42+02:00

The Politicised and Criminalised Contexts of Counterterrorism

Author: Charlotte Faltas
Date: 6. July 2020

Impacts on Humanitarian Action and Opportunities for Germany

Over the last years, more and more humanitarian organisations are expressing their concerns about the (unintended) consequences of multi-levelled counterterrorism legislation, measures and sanction regimes on their work.[1] Paradoxically, whereas counterterrorism and humanitarianism both aim for the protection of civilians and therefore have a shared objective, they at times oppose,[2] leaving the room for humanitarian activity  increasingly contested[3] or shrinking.[4]

The troublesome relation between counterterrorism and humanitarianism was identified as a key concern by Germany for its two-year elected membership to the UN’s Security Council.[5] Germany explicitly expressed to prioritise the strengthening of the humanitarian system,[6] to mobilise UN-members to implement IHL, protect civilians and humanitarian workers[7] and give access to principled humanitarian action,[8] especially when drafting resolutions and laws containing counterterrorism measures or establish sanction regimes.[9] Given the rapid expansion of counterterrorism measures whilst global humanitarian needs increased more than tenfold since the early 2000s,[10] this focus is highly pertinent. What are Germany’s current actions and positions and what are further steps to be taken in order to effectively safeguard humanitarian action?

Germany currently takes active part in a multitude of international, multilateral and regional forums concerned with counterterrorism such as the UN, the Council of Europe, the EU, the NATO, the OSCE and the Global Counterterrorism Forum.[11] Moreover, Germany is a leading member[12] of the Coalition against Da’esh, engaging in military intervention aimed to halt ISIS activities, a non-state armed group (NSAG) designated as a terrorist organisation. Germany is now also the second-largest donor state for humanitarian aid,[13] with overall humanitarian funds quadrupling since 2014. These parallel developments arguably make for interesting possibilities for Germany to position itself as an ‘honest broker’ within this matter.

The danger of criminalising and politicising humanitarian action

Aims to strengthen the humanitarian system and respecting international law, however, do not happen in vacuum: they are increasingly subject to legal and politico-military dimensions, placing the relation between counterterrorism and humanitarianism in a highly criminalised and politicised context. Current legislation now prohibits ‘material support’ to designated groups, jeopardising the flow of humanitarian aid and compromising the humanitarian principles. Thus, it will be argued that tackling these issues is crucial in ensuring consistency and unity in Germany’s ongoing efforts. The question arises how to effectively address the skewed relation between counterterrorism and principled humanitarian action and how Germany can build upon its generated momentum and current influence[14] by setting new examples of good practice that put the current worrisome developments at a halt.

The vast increase of counterterrorism efforts,[15] translated into an extremely complex, incoherent and multi-levelled collection of donor requirements, sanctions, blacklists and legislation, is difficult to navigate for humanitarian organisations and the consequences on their work are far-reaching. These regulations severely impede the flow of aid, posing bureaucratic hurdles for organisations and depriving civilians from humanitarian action. More so, humanitarian actors increasingly fear criminal charges or fines. The hardening and severe expansion of counterterrorism requirements through legal operationalisation and criminalisation leaves less room to manoeuvre[16] and, consequently, increases risk aversion.[17] This, finally, impedes the access and execution of principled humanitarian action itself. Therefore, an obvious first step Germany could undertake, is a clearer a priori identification of legal pitfalls on all levels of legislation, but at a minimum at its own State level, guarding aid organisations through the current complex judicial architecture.

The lack of definitional clarity and unity does not solely limit itself to the question how terrorism is defined. It also adds uncertainty about how and whether to classify (or designate) an individual or organisation as terrorist and when (if ever) this perceived threat no longer occurs and de-listing can be initiated. By consequence, organisations trying to offer humanitarian action are drawn into these unclarities and risk being accused of aiding organisations and regimes deemed as terrorist and being treated accordingly. Both procedures are therefore ununiform and differ greatly between the power levels of which Germany is also part. This heterogeneity highlights how politically dictated these practices are, enabling the use (or threat) of listing procedures as political leverage.[18] An example of how perceived threats of listed entities are subject to change is that until 2008, Nelson Mandela and his ANC party were still listed on the terrorist watch list by the US and travel restrictions applied.[19] This, although he was released in 1990 to assist in the peaceful transition to majority rule in South Africa, ultimately being elected president four years later. Classifying certain individuals or organisations as terrorist is thus a highly political and in transparent procedure that calls for urgent revision – a stance Germany could emphasise more thoroughly in its current position.

The missing definitional consensus allows for States to employ a self-serving definition and a broad scope for developing counterterrorism legislation[20] tailored around specific state interests in terms of security, military and/or political goals. Both receiving and aiding states and other multi-levelled actors seem to favour a broad as possible ‘working definition’, leaving room for manoeuvre between ‘state security obligations’ and humanitarian action. Humanitarian organisations are forced to play along and abide by the rules, thus compromising the humanitarian principles as well as their neutral mandate. The latter would  gain more operational room by humanitarian exemptions, a potential solution to enhance differentiation between humanitarianism and other forms of activities that might support terrorism. Legally safeguarding humanitarian action, however, is still contested and complex and therefore requires extensive research – another issue that Germany should advocate for.

Generally, within the realm of politics, under the ‘War on Terror’-banner, much seems to be allowed. The demarcation between what is morally right, legally prohibited and what is politically justified is highly unclear, with the latter usually given prominence. It also raises the question whether counterterrorism regulations are sometimes employed to justify actions questionable or even prohibited under international law[21] whilst severely impeding humanitarian action. Although deploying political tools to de-politicise humanitarian action may seem a contradiction, Germany must continue putting this issue on the political agenda and lobbying for international support for this. Only stronger legal embeddedness and clarification of obligations under IHL and exemptions can improve the current context toward humanitarian action retaining a de-politicised and de-criminalised status.

Potentials and opportunities

The coalescence of criminalisation and politicisation of humanitarianism, forming a blur of uncertainty, could trigger future conflict between NSAGs and states and unnecessary prolongate suffering of civilians in conflict areas. Aid organisations are incurring ever greater political and legal risks while navigating (inter)national legal loopholes and experience structural, operational and internal obstacles[22] in executing principled humanitarian action. This marks the great importance of finding a way to truly set an example on how counterterrorism and humanitarian action can both be accommodated.

Germany’s attempt to elevate attention for the strengthening and protection of the room for humanitarian activity and consequent principles should be viewed as an important step in the right direction. However, itsefforts are ineffective and skewed as long as humanitarian action is linked to (inter)national security strategies. The blurring of lines between military, political and humanitarian goals enables humanitarian aid to be used as an instrument of foreign policy or employed as a mere political tool for conflict prevention and resolution,[23] such as with the rise of preventing/countering violent extremism (P/CVE) strategies, whose political objectives are adopted into the UN and EU.[24]  Currently, anti-terrorism policies maintain this development, for example under the EU comprehensive security strategy and the UN’s plan of action to prevent violent extremism.[25] This calls for some internal soul-searching as it could bolster further politicisation and criminalisation[26] and cloud over the distinction between security and humanitarian objectives,[27] affecting the perceived independence and neutrality of humanitarian organisations. Therefore, it is crucial to place humanitarian action outside this current framework. Addressing it calls for transparency, openness and clear guidelines on how to navigate this interlinkage. Here lies an example-setting role for Germany, that could openly address this uneven balance in its own foreign and donor policies by clearly differentiating between political and humanitarian goals.

Ideally, emphasis should be placed on providing more clarity on the facilitation of humanitarian action under counterterrorism requirements. The first step is for Germany to take stance in the debate about how to systematically and durably include humanitarian exemptions in (inter)national legislation. Such (sectoral) exemptions[28] will aim to exempt mandated humanitarian actors from potential punishment for violations imposed within sanction- and counterterrorism regimes.[29] Legal embeddedness can shield these exemptions from becoming political. Similarly, it would be recommended to secure efficient monitoring of how counterterrorism legislation and sanctions are implemented and truly affect humanitarian action. This could be achieved by stronger organisational reporting mechanisms as well as promoting in-depth and objective research and political analysis.

In conclusion, Germany would have the potential to be an ‘honest broker’[30] by seizing the opportunity of its growing importance to continuously address and counteract the impact of both the political and legal counterterrorism-dimension and their negative impact on humanitarian action through consistent policies and legislation, a coherent and transparent political stance in the debate and ditto actions within the humanitarian space.

Charlotte Faltas is an intern at the Centre for Humanitarian Action (CHA). Charlotte studies International Human Rights and Humanitarian Law at the European University Viadrina. In her master’s thesis called “The Legal Architecture of Counterterterrorism Legislation and Sanction Regime: Impacts on Principled Humanitarian Action” she deals with the legal tension between principled humanitarian aid and counterterrorism measures.

This blog contribution was published in English only.

[1] See for example the positioning paper of the Norwegian Refugee Council of January 2019, available at https://www.nrc.no/resources/position-papers/nrc-position-paper-on-counterterrorism-measures/ and this 2019 Humanitarian Congress panel interview https://www.thenewhumanitarian.org/feature/2019/11/26/balancing-act-anti-terror-efforts-and-humanitarian-principles, last accessed 12.02.2020.

[2] Parker for The New Humanitarian, 2019, see note 1.

[3] A term borrowed from Collinson & Elhawary, 2012.

[4] As stated in the speech by Foreign Minister Heiko Maas at the UNSC briefing on safeguarding humanitarian space on 01.04.2019, see https://www.auswaertiges-amt.de/en/newsroom/news/maas-security-council-humanitarian-space/2206124, last accessed 12.02.2020. See also the positioning paper of the Norwegian Refugee Council of January 2019, endnote 1.

[5] The German membership of the United Nations Security Council started on 01.01.2019 and lasts until the end of 2020.

[6] Other priorities were, for example, advancing the women, peace and security agenda and climate change and security policies.

[7] This was particularly emphasised by the French-German Call to Action, launched in April 2019. See https://www.diplomatie.gouv.fr/en/french-foreign-policy/united-nations/alliance-for-multilateralism-63158/article/a-call-for-action-to-bolster-respect-for-international-humanitarian-law, last accessed 12.02.2020.

[8] See endnote 2.

[9] See https://www.auswaertiges-amt.de/en/newsroom/news/maas-security-council-humanitarian-space/2206124, last accessed 12.02.2020.

[10] Südhoff & Hövelmann, 2019, p. 4, available at https://www.chaberlin.org/wp-content/uploads/2019/04/2019-03-statement-humanitarian-assistance-cha-en-2.pdf, last accessed 20.04.2020.

[11] See https://www.auswaertiges-amt.de/en/aussenpolitik/themen/terrorismus-kriminalitaet/-/231900, last accessed 12.02.2020.

[12] See https://theglobalcoalition.org/en/germanys-military-contribution-against-daesh-in-iraq/, last accessed 12.02.2020.

[13] See https://www.bundesregierung.de/breg-en/news/germany-is-second-largest-donor-1547358, last accessed 25.02.2020.

[14] See https://new-york-un.diplo.de/un-de/service/02-Themen-Schwerpunkte-Ziele, last accessed 12.02.2020.

[15] This development was significantly boosted by the events of 9/11.

[16] See for a more detailed analysis: Roepstorff, Faltas & Hövelmann, 2020, available at https://www.chaberlin.org/en/publications/counterterrorism-measures-and-sanction-regimes-shrinking-space-for-humanitarian-aid-organisations/, last accessed 20.04.2020.

[17] See https://www.care-international.org/news/press-releases/counter-terrorism-frameworks-and-safeguarding-humanitarian-space-humanitarian-recommendations-ahead-of-the-unga-high-level-side-event, last accessed 12.02.2020.

[18] Elliott & Parker for The New Humanitarian, 2019, see https://www.thenewhumanitarian.org/feature/2019/11/26/balancing-act-anti-terror-efforts-and-humanitarian-principles, last accessed 14.02.2020.

[19] Decrey Warner in Humanitarian Gathering, as noted by Elliott & Parker, 2019, see endnote 18. See also the official FBI Watchlist, https://www.epic.org/foia/fbi_watchlist.html.

[20] See endnote 18.

[21] Be it under human rights law, ius in bello orutilised to qualify for ius ad bellum.

[22] This trinity of impacts was identified in the 2018 NRC Study, see O’Leary, 2018, p. 8.

[23] Dany, 2019a, see https://blog.prif.org/2019/05/14/how-germany-advocates-for-the-protections-of-aid-workers-in-the-security-council/, last accessed 20.04.2020.

[24] O’Leary, 2018, pp. 18-19 mentions the UN’s Plan of Action to Prevent Violent Extremism (2016), the EU’s Comprehensive Approach in External Conflicts and Crises (2016) and the UN’s New Way of Working and the Triple Nexus (2017).

[25] See endnote 23.

[26] Dany, 2019b, pp. 25-26, see https://www.hsfk.de/fileadmin/HSFK/hsfk_publikationen/PRIF0619.pdf, last accessed 12.02.2020.

[27] See endnote 26.

[28] However, its workability is currently still debated by scholars and practitioners as some fear further limitation of humanitarian action, encourage bribery or misuse of the mandate by terrorist groups, see King, Modirzadeh & Lewis, 2016, pp. 8-9, available at https://dash.harvard.edu/handle/1/29998395, last accessed 20.04.2020.

[29] King, Modirzadeh & Lewis, 2016, p. 8.

[30] Südhoff & Hövelmann, 2019, p. 23.

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