Members of the Red Crescent in Syria escort people and aid from an area controlled by rebels to one held by the Assad regime. Aleppo, Syria, December 10, 2015. (Karam Al Masri/AFP/Getty Images)

Where Do Humanitarians Fit in Fight Against Extremism?: Q&A with Naz Modirzadeh

Members of the Red Crescent in Syria escort people and aid from an area controlled by rebels to one held by the Assad regime. Aleppo, Syria, December 10, 2015. (Karam Al Masri/AFP/Getty Images)

Efforts to fight terrorism and extremism are increasingly in tension with international humanitarian laws such as those around delivering medical aid in conflicts, according to Naz Modirzadeh, Director of Harvard Law School’s Program on International Law and Armed Conflict.

“For over 150 years, the laws of war have very clearly articulated that medical care must be provided to wounded and sick fighters,” Ms. Modirzadeh said, on the sidelines of an Independent Commission on Multilateralism (ICM) retreat on humanitarian engagements.

Speaking with International Peace Institute Senior Director of Programs, Maureen Quinn, she said this historical obligation was being increasingly challenged, with humanitarian workers now less clear about their rights and responsibilities, and some even facing punishment for aiding terrorists.

Ms. Modirzadeh also spoke about United Nations Secretary-General Ban Ki-moon’s new plan of action on preventing violent extremism, noting that it failed to define the problem it seeks to address.

“I worry that it is impossible to answer the question of which communities produce violent extremism when we do not have a definition of what violent extremism is,” she said.

This interview has been edited for clarity and length.

The Secretary-General’s action plan on preventing, or countering, violent extremism (CVE) looks to tackle conditions conducive to terrorism, while also stressing the maintenance of human rights and the rule of law. Are you confident that this emerging preventive discourse can avoid further marginalizing communities thought to produce extremism?

My sense is to back up a bit and think about how the plan of action frames this question. We have two concrete examples of violent extremism in the document. One is Anders Breivik and the horrific 2011 mass murder in Norway; then we have ISIS, Boko Haram, and al-Qaeda.

Part of my lack of confidence in the document achieving what it sets out to—and perhaps in allaying the fears certain communities and civil society groups have—is that it does not define violent extremism. The document essentially says that because member states have been unable to come up with a definition—both of terrorism and of violent extremism—that the plan of action will proceed without one; that leaves a tremendous amount to be desired as to its recommendations.

The Secretary-General emphasizes in the plan that states should be exceptionally cautious in implementing their plans of action; that they should be wary to not go beyond existing international human rights and humanitarian law limits on how they treat the issue of violent extremism. But I worry that it is impossible to answer the question of which communities produce violent extremism when we do not have a definition of what violent extremism is.

The plan also explores the use of mediation and arbitration with potential terrorists. Humanitarians often face dilemmas around what is legal in this respect. Do you see this new action plan as a starting point for addressing some of these questions?

The answer will likely lie in how the document is interpreted and implemented, and also in what approach humanitarian actors take to CVE as a discourse. Some might argue that the plan of action’s recommendations—for engagement, for greater dialogue, for increased political solutions—could provide a new or more expansive justification for humanitarian actors seeking to expand the basis for their engagement with all armed groups, including those that might be designated as terrorists. Some might see it as a new basis for engagement with governments and security actors. Others might be concerned that if they were to adopt the CVE language they would be adopting the underlying assumptions and normative framework of the plan of action and of CVE more generally. The plan of action is not explicit regarding whether those who are engaged in violent extremism are considered the same as terrorists. At certain times, it seems to blend terrorists and violent extremists, at other times it seems like violent extremists might be a broader category.

As we have seen, various UN actors and NGOs have at times found it challenging to directly negotiate with or engage designated terrorist groups, either because of a perceived legal prohibition, or because some UN actors have purportedly stated that there is a policy against directly engaging with those designated groups. It might be hoped that this plan could provide a new avenue, but it’s difficult to see how unless and until a stronger definitional basis of the underlying problem is developed.

Humanitarians have criticized existing counterterrorism laws, which they interpret as limiting their work. Have practitioners developed ways to work around this in the field, and do policymakers have to catch up with them?

We’ve done a lot of research on the role of counterterrorism laws and policies in potentially creating obstacles, or perceived obstacles, to humanitarian action. My sense is that, increasingly, humanitarian actors on the ground are seeking ways to address some of the legal tensions on providing so-called “material support” and other kinds of support to terrorism, as well as to address other counterterrorism measures that are often in humanitarian donor agreements.

From our research, we’ve seen that humanitarian organizations do not want to work around laws. Most humanitarian organizations work diligently to comply with their contractual and other legal obligations. And yet, our research has also demonstrated—and the research of many other organizations such as the Norwegian Refugee Council and the UN Office for Coordination of Humanitarian Affairs has confirmed—that humanitarian actors on the ground often face multiple counterterrorism regulations emanating from individual government donors as well as from UN agencies and bodies that engage and contract with partners. This often results in tremendous confusion, with humanitarian actors unsure of exactly where the legal lines are drawn and frequently forced to come up with responses in real-time, all with limited and sometimes conflicting information.

 Your Harvard research has looked at the intersection of international humanitarian law and counterterrorism related to the wartime medical care of terrorists. Is there a role for the UN Security Council or other bodies to address potential gaps and contradictions in this existing policy framework?

This is an area where, in my sense, counterterrorism framings and international humanitarian law may come into the most direct tension, in the sense that counterterrorism, in seeking to prohibit all support or benefit to listed terrorist actors, may at times also practically prohibit medical care to those designated terrorist individuals or groups. For over 150 years, the laws of war have very clearly articulated that medical care to wounded and sick fighters hors de combat (outside the fight) must be provided. International humanitarian law (IHL) treaties have long established that in war all wounded and sick individuals—whether civilian or fighter, whether enemy or friend, so long as they are not, or no longer, fighting and have laid down their arms—must have access to medical care. In this relation to impartial medical care, the logic of counterterrorism and international humanitarian law differ.

I think the Security Council has an exceptionally important role in this domain. For example, our research found that medical activities were included among the bases articulated by the Security Council al-Qaeda Sanctions Committee in designating at least two individuals. Although the other reasons for listing these individuals were clearly of a much more “terrorist supporting” nature, I would argue that, in its reasoning for designations, the Council should be mindful of the potential IHL implications, and should make it explicit that the provision of impartial medical care cannot be a legitimate ground for designating individual terrorists or terrorist organizations.

Secondly, at times we’ve seen, most recently in Resolution 2178, a real emphasis that in countering terrorism, in suppressing foreign terrorist fighters, member states must also adhere to their obligations under applicable international humanitarian law, human rights law, and refugee law. One of the interesting dilemmas we’ve seen emerging is citizens of a state who have traveled, such as to Syria, coming back, and when they are detained under new foreign terrorist fighter criminal laws rooted in Resolution 2178, they will claim that they were actually providing medical care. In many of these cases, it’s a real challenge because it’s both difficult to prove that this person was acting as a medical care provider, but, on the other hand, very difficult to disprove he or she wasn’t. More fundamentally, these cases highlight a key challenge: How do you continue to safeguard international humanitarian law rights, responsibilities, and obligations discharged in an extraterritorial conflict, in which your state may or may not be involved, whilst also protecting national security and making sure that individuals who are returning are clearly held responsible for crimes they may have committed?