Developing a “Take Into Account” System
The prompt
In two resolutions adopted in 2019, the Security Council urged States to take into account the potential effects of certain counterterrorism measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law (IHL).
FAQs
What does “take into account” mean in this context?
The Security Council did not define the key terms and concepts related to the “take into account” provisions of Resolution 2462 (2019) and Resolution 2482 (2019). We interpret the notion of “to take into account” in these resolutions as encompassing at least the identification of those potential effects and taking the action necessary to ensure that the indicated measures reflect respect for or are otherwise compatible with potentially or actually applicable IHL rights and obligations concerning humanitarian and medical activities.
How can a State deal with these issues?
To address these issues comprehensively, a State may decide to evaluate the counterterrorism-related conduct of all of its organs and agents as well as others whose conduct is attributable to the State, whether the entity or person exercises a legislative, judicial, executive, or other function. A core State objective here might be framed in terms of implementing a sufficiently vast and detailed program to ensure compliance by the State’s counterterrorism-related authorities with the State’s IHL rights and obligations pertaining to humanitarian and medical activities. For example, a State may decide to review whether its relevant legislative, regulative, or donor texts run counter to IHL provisions permitting humanitarian and medical actors to engage in their respective activities in armed conflicts, including conflicts that also qualify as counterterrorism contexts. If, for instance, a counterterrorism-related legislative act is deemed incompatible with IHL rights and obligations, the State may repeal the act or otherwise render it ineffective. Numerous other potential examples may arise across the diverse range of potentially relevant counterterrorism measures.
Steps
What are some potential elements of an analytical framework through which a State may seek to develop and administer its “take into account” system?
Object and Purpose
A two-part object and purpose
It may be argued that the object and purpose of a “take into account” system can be at least two-fold.
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The system may aim to secure respect for international law, notably the U.N. Charter and IHL pertaining to humanitarian and medical activities. Under the Charter Member States are obliged to accept and carry out decisions of the Security Council, including as related to both counterterrorism measures and humanitarian and medical activities, and IHL contains an array of rights and obligations concerning humanitarian and medical activities. A “take into account” system may be devised and executed in a manner that aims to secure respect for these parts of international law by at least two sets of actors.
The first set relates to the State itself and includes at least all of the agents and organs of the State involved in designing and applying counterterrorism measures and any other person or entity involved in conduct concerning counterterrorism measures attributable to the State. In short, the State may seek to ensure — through all relevant people and entities — that the State’s counterterrorism measures are designed and applied in a way that reflects respect both for the U.N. Charter and for IHL pertaining to humanitarian and medical activities. For example, the “take into account” system may aim to ensure that none of the State’s counterterrorism laws may be interpreted or applied in a manner that prevents or impairs the State’s agents or organs from engaging in humanitarian and medical activities subject to IHL protection — for instance, the provision of impartial medical care by the medical personnel of the State’s armed forces to wounded and sick adversary fighters.
A second set of actors comprises other actors whose respect for one or more of these areas of international law that the State devising and administering the “take into account” system may be in a position to influence through the system. Those other actors may include States, international agencies, private humanitarian organizations, and unaffiliated individuals. For example, the State may fund humanitarian and medical activities by a private humanitarian organization operating in a foreign armed conflict. The funding State’s “take into account” system may be devised and executed in a way that helps ensure that the private humanitarian organization will be in a position to respect IHL pertaining to those humanitarian and medical activities — for instance, by designing and applying counterterrorism measures in a way that facilitates, or at least does not prevent or impede, the private humanitarian organization from offering and providing its humanitarian and medical services in relation to a non-state party to an armed conflict characterized as a terrorist group. (That characterization may arise under the State’s (extraterritorial) counterterrorism legislative framework; a Security Council decision; another State’s counterterrorism legislative framework, such as the State in whose territory the armed conflict takes place; or another source.)
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The “take into account” system may also aim to safeguard humanitarian and medical activities in armed conflicts characterized as counterterrorism contexts. Not all acts of terrorism are legally connected to armed conflicts. Nevertheless, recent decades have witnessed an apparent increase in the number of armed conflicts characterized (also) as counterterrorism contexts. Keeping in view the recognition by the Security Council that the potential effects of (certain) counterterrorism measures on covered humanitarian and medical activities are relevant to international peace and security, each State may seek — including through its “take into account” system — to safeguard humanitarian and medical activities in “joint” armed-conflict-and-counterterrorism contexts.
Preconditions
At least two sets of preconditions are arguably necessary
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The first category concerns the preconditions arguably necessary for the State to identify and evaluate the potential effects of (certain) counterterrorism measures on covered humanitarian and medical activities. Before a State can take such a potential effect into account, it must first create an inventory of those potential effects. In establishing and maintaining such an inventory, a State may refer to the extensive research and analysis published on such effects. A State may (also) engage in discussions and information-gathering with a variety of humanitarian and medical actors involved in relevant activities. Having created the inventory, the State needs to ascertain how, to what extent, and under what circumstances and conditions those effects may arise.
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The second category relates to the preconditions arguably necessary for the State to address potential effects consistent with the object and purpose of its “take into account” system. Suppose that a State adopts the two-fold object and purpose set out above: namely, to secure respect for international law, notably the U.N. Charter and IHL pertaining to humanitarian and medical activities, and to safeguard humanitarian and medical activities in armed conflicts characterized as counterterrorism contexts. Having identified and evaluated relevant potential effects, the State may need to (re)design and (re)apply — or, perhaps, even suspend or terminate — some of its counterterrorism measures to achieve that object and purpose.
System Attributes
To achieve the object and purpose, the system may need to embody at least three attributes
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First, the system may need to be developed and administered in a way that reflects a State-wide approach, in the sense that all relevant agents and organs of the State, as well as other people and entities whose relevant conduct is attributable to the State or over whom the State otherwise exercises sufficient control or influence, are included in the relevant aspects of the system.
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Second, the system arguably needs to focus on the potential effects of counterterrorism measures on covered humanitarian and medical activities — not on effects that have already occurred. In other words, an effect does not have to be qualitatively or quantitatively validated for it to be considered relevant for the system.
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Third, the system arguably should include default principles and rules that guide those tasked with devising and implementing the system. For example, the system may be devised to default to adopting laws, policies, and regulations that are more likely to achieve the object and purpose of the system, including safeguarding humanitarian and medical activities in armed conflicts also characterized as counterterrorism contexts.
