¹ The modified criteria are reflected in art 44(3) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, of 8 June 1977 (‘AP I’); see Pejic, J, ‘Armed Conflict and Terrorism: There Is a (Big) Difference’ in Frías, AM Salinas de, Samuel, K and White, ND (eds), Counter-Terrorism: International Law and Practice (Oxford University Press 2012) 178–9Google Scholar.

² See, for example, A/68/37, Annex II, and Annex III, paras 10–18; A/C.6/72/SR.28, paras 13–18; R v Gul [2013] UKSC 64, at 46–7.

³ See, for example, Norwegian Refugee Council, Principles under Pressure: The Impact of Counterterrorism Measures and Preventing/Countering Violent Extremism on Principled Humanitarian Action (2018) 9, 12.

⁴ Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.

⁵ The 1899 Hague Convention on the Laws and Customs of War on Land, as well as two declarations adopted on the use of asphyxiating gases and expanding bullets.

⁶ The nine conventions adopted in 1907 included the Convention relative to the Opening of Hostilities, the Convention on War on Land and its Annexed Regulations, and on Restrictions of the Right of Capture.

⁷ Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (‘GC I’); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (‘GC II’); Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (‘GC III’); and Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (‘GC IV’).

⁸ AP I (n 1); 1977 Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609 (‘AP II’).

⁹ ICRC, Customary International Humanitarian Law – Vol. I: Rules, J-M Henckaerts and L Doswald-Beck (eds) (2005).

¹⁰ See, for example, on the requirements for a non-international armed conflict, Haradinaj and others (Retrial Judgment), IT-04-84bis-T (29 November 2012) para 393.

¹¹ B Saul, ‘Terrorism and International Humanitarian Law’ in B Saul (ed), Research Handbook on International Law and Terrorism (Edward Elgar 2014) 231.

¹² The latter category includes the 1979 Convention against the Taking of Hostages, 1316 UNTS 205 and the 1999 Convention for the Suppression of the Financing of Terrorism, 2178 UNTS 197.

¹³ Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA.

¹⁴ 1999 OAU Convention on the Prevention and Combating of Terrorism.

¹⁵ 1999 Treaty of Cooperation among States members of the Commonwealth of Independent States in Combatting Terrorism.

¹⁶ 1999 Convention of the Organisation of the Islamic Conference on Combatting International Terrorism.

¹⁷ 2007 ASEAN Convention on Counter-Terrorism.

¹⁸ 1987 SAARC Regional Convention on Suppression of Terrorism; 2004 Additional Protocol to the SAARC Regional Convention on Suppression of Terrorism.

¹⁹ 2005 Council of Europe Convention on the Prevention of Terrorism, CETS No. 196 (‘2005 CoE Convention’); 2015 Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism, CETS No. 217 (‘2015 CoE Protocol’).

²⁰ S/RES/1373 (2001).

²¹ S/RES/2178 (2014).

²² See S/RES/1267 (1999); S/RES/2253 (2015).

²³ Talmon, S, ‘The Security Council as World Legislature’ (2005) 99(1) AJIL 175CrossRefGoogle Scholar; Happold, M, ‘Security Council Resolution 1373 and the Constitution of the United Nations’ (2003) 16 LJIL 593CrossRefGoogle Scholar.

²⁴ Pejic (n 1) 172.

²⁵ K Mackintosh and P Duplat, Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action (UN Office for the Coordination of Humanitarian Affairs and the Norwegian Refugee Council 2013) 12.

²⁶ For 2017 figures, see Institute for Economics and Peace, Global Terrorism Index 2018: Measuring the Impact of Terrorism and Peace Research Institute Oslo, Trends in Armed Conflict, 1946–2017 (May 2018).

²⁷ S/2016/92, paras 4–17; S/RES/2199 (2015), preamble.

²⁸ S/2016/92, para 25.

²⁹ See for example National Strategy for Counterterrorism of the United States of America (October 2018) 8; Plan d'action contre le terrorisme (13 July 2018) 7 (France); CONTEST: The United Kingdom's Strategy for Countering Terrorism (June 2018) 7.

³⁰ S/2018/80, paras 5–11; S/2019/103, paras 4–10.

³¹ As defined in art 2 common to the four Geneva Conventions.

³² See AP II, art 1(1).

³³ DA Lewis, NK Modirzadeh and G Blum, Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism – Legal Briefing and Compendium (Harvard Law School Program on International Law and Armed Conflict 2015) 25. There are exceptions: an IAC can also exist where one State deploys irregular forces (including, potentially, a group designated as terrorist) against another State, so long as the first State exercises the requisite ‘overall control’ (see GC III, art 4(A)(2)). In addition, AP I includes within its scope of application ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination …’ (art 1(4))— again, groups in this category could include those designated as terrorist. See further Saul (n 11) 209–12.

³⁴ Pejic (n 1) 181–3.

³⁵ See AP II, art 1(2).

³⁶ Saul (n 11) 214.

³⁷ Indicators include: a command structure and disciplinary rules within the group; a headquarters; the ability to plan and carry out military operations, and the ability to negotiate and conclude agreements such as ceasefire (Pejic (n 1) 182–3).

³⁸ As laid out in AP II, art 1(1).

³⁹ Saul (n 11) 213.

⁴⁰ One of the core provisions of IHL, this lays down minimum standards binding on each party to (any) non-international armed conflict. It constitutes a ‘minimum yardstick’ and reflects ‘elementary considerations of humanity’ (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America). Merits, Judgment. ICJ Reports 1986, 14, paras 218–219)

⁴¹ See art 3(2) common to the four Geneva Conventions.

⁴² See Pejic (n 1) 175–7.

⁴³ AP I, arts 48, 51(2); AP II, art 13(2).

⁴⁴ AP I, art 51(5)(b).

⁴⁵ AP I, art 3.

⁴⁶ AP I, art 53; AP II, art 16.

⁴⁷ AP I, art 75(2)(c); AP II, art 4(2)(c).

⁴⁸ See Prosecutor v Galic, IT-98-29-T, Trial Judgment, 5 December 2003, at paras 65–66.

⁴⁹ GC IV, art 33, and AP II, art 4(2)(d), respectively.

⁵⁰ See GC I, arts 49–50; GC II, arts 50–51; GC III, arts 129–130; GC IV, arts 146–147; and AP I art 85(3)(a)–(c). The grave breaches regime does not apply with respect to NIACs.

⁵¹ cf. Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01/I (16 February 2011) paras 83–113), discussed in Saul, B, ‘Legislating from a Radical Hague: The United Nations Special Tribunal for Lebanon Invents an International Crime of Transnational Terrorism’ (2011) 24 LJIL 677CrossRefGoogle Scholar.

⁵² Firstly, because agreement on the comprehensive convention remains elusive. And secondly, because even that instrument would not preclude States from adopting or maintaining broader definitions of terrorism in domestic law: a comprehensive convention will set a minimum standard for what the parties define as terrorism for the purposes of that instrument, not a maximum threshold applicable in all contexts (see A/68/37, Annex I, art 2; R v Gul (n 2) paras 53–58).

⁵³ The criminalisation requirements are imposed with respect to conduct by a Member State's nationals, or taking place on its territory; that is, the resolutions rely on the two traditional, and most widely accepted, bases for criminal jurisdiction (see S/RES/1373 (2001) para 1(b), (d)) and S/RES/2178 (2014) para 6(a)–(c)).

⁵⁴ S/RES/2322 (2016).

⁵⁵ See, for example, AP I, art 86(2).

⁵⁶ Including, with respect to the grave breaches regime, a form of universal jurisdiction (see O'Keefe, R, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2 JICJ 735Google Scholar).

⁵⁷ See AP I, art 88(1).

⁵⁸ See Statute of the International Criminal Court, 2187 UNTS 3, art 8. Under art 13(b) of the Statute, the Security Council can refer a situation to the Court, irrespective of whether the territorial State is itself a party to the Statute.

⁵⁹ The exceptions are: the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1678 UNTS 201); the 1991 Convention on the Marking of Plastic Explosives (2122 UNTS 359); the 2005 Amendment to the Convention on the Physical Protection of Nuclear Material (all three of which use the word in their preambles, only); the Terrorist Bombing Convention, the Financing Convention, and the 2005 Nuclear Terrorism Convention.

⁶⁰ See S/RES/1373 (2001), para 2(e) and S/RES/2178 (2014), para 6.

⁶¹ See AP I, art 43(2).

⁶² See R v Gul (n 2) para 50.

⁶³ T Ferraro, ‘Interaction and Overlap between Counter-Terrorism Legislation and International Humanitarian Law’ in Proceedings of the Bruges Colloquium: Terrorism, Counter-Terrorism and International Humanitarian Law, 17th Bruges Colloquium (20–21 December 2016) 25, 29.

⁶⁴ See Lewis et al. (n 33) 31–2. Those authors note art 3(1) of AP II, according to which ‘Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.’

⁶⁵ On which, see A Dworkin, ‘A Tribunal for ISIL fighters?’ European Council on Foreign Relations (31 May 2019).

⁶⁶ S/RES/2379 (2017).

⁶⁷ ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts Doc 32IC/15/11 (October 2015) 21. See generally: Lewis et al. (n 33) 147–8; E-C Gillard, Recommendations for Reducing Tensions in the Interplay Between Sanctions, Counterterrorism Measures and Humanitarian Action (Chatham House 2017); A Debarre, Safeguarding Medical Care and Humanitarian Action in the UN Counterterrorism Framework (International Peace Institute 2018); ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Doc 31IC/11/5/1/2 (October 2011); Norwegian Refugee Council (n 3) 20–7.

⁶⁸ S/RES/2253 (2015), preamble; S/RES/2462 (2019), preamble, paras 12, 23.

⁶⁹ S/RES/2368, preamble. The putatively humanitarian objectives of some entities listed by the Security Council's 1267 Committee are often illustrated by their titles, including: Global Relief Foundation (QDe. 091); Al-Haramain & Al Masjed Al-Aqsa Charity Foundation (QDe. 109); Benevolence International Foundation (QDe. 093); and Wafa Humanitarian Organisation (QDe. 015).

⁷⁰ FATF, Best Practices: Combating the Abuse of Non-Profit Organisations (Recommendation 8) (June 2015) 4–5.

⁷¹ ICRC notes that ensuring care for wounded and sick combatants, and protecting those devoted to that task, was ‘the main reason for the drafting of the very first Geneva Convention of 1864’ (ICRC 2015 (n 67) 30). See on protection of medical care in IHL generally, Lewis et al. (n 33) 38–66.

⁷² ICRC, Commentary on the Geneva Conventions of 12 August 1949, Vol. I, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Pictet ed. (1952).

⁷³ ICRC 2015 (n 67) 30–1.

⁷⁴ Common article 3(2) (emphasis added).

⁷⁵ GC I, art 25.

⁷⁶ GC III, arts 30–33.

⁷⁷ GC IV, arts 55(1), 56(1).

⁷⁸ GC IV, arts 91–92.

⁷⁹ AP I, art 12.

⁸⁰ GC IV, art 18ff, 57.

⁸¹ AP I, arts 21–31.

⁸² AP I, art 85(2).

⁸³ GC II, art 41; AP I, 18(4), 38(1).

⁸⁴ ICRC Commentary (1952) (n 72) 192.

⁸⁵ GC I, art 18 (emphasis added).

⁸⁶ AP I, art 16(1); AP II, art 10(1); see also ICRC, Commentary on the Additional Protocols of 8 June 1977, to the Geneva Conventions of 12 August 1949, Y Sandoz, C Swinarski and B Zimmermann (eds) (1987) 199–202 at 646–662 (on the former provision) and 1425–1426, at 4685–4691 (on the latter).

⁸⁷ Unlike provisions on the right of those engaged in medical activities not to disclose information on persons being treated (AP I, art 16(3) and AP II, art 10(3)–(4)), the non-punishment clauses are not made subject to the provisions of domestic law.

⁸⁸ ICRC, Customary IHL (n 9) Rule 26 (‘Punishing a person for performing medical duties compatible with medical ethics or compelling a person engaged in medical activities to perform acts contrary to medical ethics is prohibited’) 86–8.

⁸⁹ Lewis et al. (n 33), 61–2, 89–90, and additional sources cited therein.

⁹⁰ On the distinction between State practice in implementation of treaty obligations, and State practice as evidence of a rule of customary international law, see North Sea Continental Shelf, Judgment [1969] ICJ Rep 3, at para 76; ILC, Draft Conclusions on Identification of Customary International Law, with Commentaries, 2018, UN Doc A/73/10, 139.

⁹¹ A/44/165, preamble and para 5. The resolution addressed the situation in El Salvador, which had been a party to AP II since 1978. The same was true of the cited resolution of the UN Commission of Human Rights, res. 1990/77.

⁹² As of November 2019, no additional evidence of this rule was cited in the ICRC's updated customary international law database.

⁹³ ICRC 2015 (n 67) 20.

⁹⁴ In arguing that this term should be interpreted ‘very broadly’, ICRC in its commentary on art 10(1) of AP II, stated that ‘the concept is broader than that of medical care and treatment. A doctor not only treats patients, he may also be called upon to issue death certificates, vaccinate people, make diagnoses, give advice’ (ICRC Commentary 1987 (n 86) 1426 at 4687). Much of the activity referred to by ICRC in the context of counter-terrorism laws, above, would likely fall outside of even this broader definition (and, indeed, outside the category of those who ‘nursed the wounded and sick’, the conviction of whom is prohibited under GC I, art 18).

⁹⁵ GC I, GC II, GC III and GC IV, art 9.

⁹⁶ This applies with respect to both the State parties to an IAC and the State in whose territory an NIAC is taking place (ICRC 2015 (n 67) 29).

⁹⁷ ibid 30.

⁹⁸ AP I, art 17(1) – emphasis added.

⁹⁹ ICRC Commentary 1987 (n 86) at 711 (on art 17(1)); see also at 649 on art 16(1), which is limited to persons engaged in medical activities.

¹⁰⁰ AP II, art 18(2) – emphasis added.

¹⁰¹ See Pejic (n 1) 186–9.

¹⁰² 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1035 UNTS 167.

¹⁰³ Hostages Convention, art 12.

¹⁰⁴ 1963 Convention on Offences and Certain other Acts Committed on board Aircraft, 704 UNTS 220, art 1(4) (the 2014 Protocol to this Convention does not amend this provision); 1970 Convention for the Suppression of the Unlawful Seizure of Aircraft, 860 UNTS 105, art 3(2); 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 974 UNTS 178 (‘Montreal Convention’), art 4(1); 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving Civil Aviation (1589 UNTS 474, which supplements the 1971 Convention, and addresses acts in airports serving civil aviation).

¹⁰⁵ 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1678 UNTS 221, art 2(1)(a) and (b). The 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf is stated to apply to installations permanently attached to the sea-bed ‘for the purpose of exploration or exploitation of resources or for other economic purposes’ (1678 UNTS 201, art 1(3), emphasis added; the 2005 Protocol to the 1988 Protocol, 1678 UNTS 304 does not alter this provision). The 1980 Convention for the Protection of Nuclear Material is stated to apply to ‘nuclear material used for peaceful purposes while in international nuclear transport’, or in certain cases domestic transport (1456 UNTS 125, art 2(1)–(2)), and criminalises a range of acts of interference with such material, which as Pejic notes could encompass the use of such material against military objectives (Pejic (n 1) 187–8).

¹⁰⁶ Such acts, as violating the principle of distinction, would amount to war crimes, but this consideration does not change the nature of the vessel attacked. In such cases, this act would be criminalised under both IHL and the counter-terrorism treaty in question.

¹⁰⁷ Terrorist Bombings Convention, art 19(2); Nuclear Terrorism Convention, art 4(2); 2010 Convention for the Suppression of Unlawful Acts relating to International Civil Aviation, ICAO Doc. 9960, art 6(2). Also, art VI of the 2010 Protocol Supplementary to the Convention for the Suppression of the Unlawful Seizure of Aircraft (ICAO Doc. 9959) inserts an art 3bis(2) into the 1970 Hague Convention, using this formula, and the 2005 Protocol does the same with respect to the 1988 Maritime Safety Convention (see art 3 of the Protocol), as does the 2005 Amendment to the 1980 Convention for the Protection of Nuclear Material (art 5 of the Amendment).

¹⁰⁸ 2122 UNTS 359, see arts III, IV (2)–(4).

¹⁰⁹ Financing Convention, arts 2(1)(b) (emphasis added) and 21.

¹¹⁰ R v Gul (n 2) para 47.

¹¹¹ Art 2(a).

¹¹² Art 3(1).

¹¹³ Art 11(e).

¹¹⁴ Art 18.

¹¹⁵ Council Framework Decision of 13 June 2002 on combating terrorism (2002/475/JHA), recital 11.

¹¹⁶ 2017 Directive (n 13), recital 37.

¹¹⁷ ibid, recital 38.

¹¹⁸ 2005 CoE Convention, art 26(5) – emphasis added. Notably, the stipulation in the italicised text does not apply to the first clause of the exclusion.

¹¹⁹ 2015 CoE Protocol, Preamble.

¹²⁰ ibid, art 9.

¹²¹ See also Vestergaard, J, ‘Foreign Terrorist Fighters: De-Radicalisation and Inclusion v Law Enforcement and Corrections in Denmark’ in Brière, C and Weyembergh, A (eds), The Needed Balances in EU Criminal Law: Past, Present and Future (Hart 2018) 275Google Scholar.

¹²² S/RES/1373 (2001), paras 1(b), 1(d), 2(e) (emphasis added).

¹²³ FATF, International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation: The FATF Recommendations 11, 35.

¹²⁴ See S/RES/2253 (2015), preamble, paras 16–17; S/RES/2322 (2016), preamble; S/RES/2368 (2017), para 10; and, more recently, S/RES/2462 (2019), para 5. On the underlying rationale, see FATF, Criminalising Terrorist Financing: Recommendation 5 (October 2016) paras 18–20.

¹²⁵ S/RES/1624 (2005), para 4, see also preamble; S/RES/2178 (2014), preamble; S/RES/2253 (2015), preamble; S/RES/2368 (2017), preamble.

¹²⁶ S/RES/2178 (2014), para 6.

¹²⁷ S/RES/2253 (2015), para 3(c) – emphasis added.

¹²⁸ S/RES/2368 (2017), para 2(c).

¹²⁹ List accessible at <https://scsanctions.un.org/fop/fop?xml=htdocs/resources/xml/en/consolidated.xml&xslt=htdocs/resources/xsl/en/al-qaida.xsl>.

¹³⁰ Listed as Al-Qaida in Iraq, Designated Entity (QDe. 115).

¹³¹ QDe. 138.

¹³² Previously known as Al-Nusrah Front, QDe. 137.

¹³³ QDe. 129.

¹³⁴ S/RES/2462 (2019), para 5 – emphasis added.

¹³⁵ S/RES/2462 (2019), para 6.

¹³⁶ S/RES/2462 (2019), para 24.

¹³⁷ See, for an example of the latter, S/RES/2396 (2017), paras 11–13.

¹³⁸ S/RES/2482, para 16 (emphasis added).

¹³⁹ S/RES/2482, para 8; see also S/RES/2467, para 28.

¹⁴⁰ See also survey in Mackintosh and Duplat (n 25) 19–43.

¹⁴¹ Law on Countering the Financing of Terrorism, Kingdom of Saudi Arabia, art 38. See also Financial Action Task Force/MENAFATF, Anti-Money Laundering and Counter-Terrorist Financing Measures – Kingdom of Saudi Arabia: Mutual Evaluation Report (September 2018) 170–1; on application of this provision, see ibid, 82–3 (box 10) and 154 (box 26).

¹⁴² Criminal Code of Switzerland, art 260 quinquies (4).

¹⁴³ See International Monetary Fund, Denmark: Detailed Assessment of Anti-Money Laundering and Combating the Financing of Terrorism IMF Country Report No. 07/2 (January 2007) 219; J Vestergaard, The Legal Framework Applicable to Combatting Terrorism – National Report: Denmark, University of Copenhagen (13 December 2013).

¹⁴⁴ Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, section 119.2. It is a defence if an individual has entered the area(s) solely for the purpose of ‘providing aid of a humanitarian nature’ or ‘performing an official duty for the United Nations or an agency of the United Nations’ (sections 119.2(3)(a) and (e)). The responsible Minister may make the declaration in question where s/he is satisfied ‘that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country’ (section 119.3(1)).

¹⁴⁵ See Criminal Code section 114j, introduced in 2016 and which proscribes presence in designated areas as an offence, but provides that prior permission can be sought by those (individuals or groups) having a legitimate purpose (section 114j(4)) and that no offence is committed where the entry/stay is connected to the pursuit of Danish, foreign or international public service or duties (section 114j(2)) (see Vestergaard 2018 (n 121) 277–82).

¹⁴⁶ The 2019 Counter-Terrorism and Border Security Act criminalising entrance to or presence in a designated area by a UK national or resident (section 4). During the drafting of the bill, concerns had been expressed by a number of NGOs; amendments subsequently introduced by the House of Lords will preclude criminal liability where presence in the designated area was for purposes including ‘providing aid of a humanitarian nature’ and ‘carrying out work for the United Nations or an agency of the United Nations’.

¹⁴⁷ Criminal Code of Belgium, section 141bis (‘ne s'applique pas aux activités des forces armées en période de conflit armé, tels que définis et régis par le droit international humanitaire’).

¹⁴⁸ Criminal Code of Canada, C-46, section 83.01(1), which states, inter alia, that a terrorist act ‘does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law’.

¹⁴⁹ Terrorism Suppression Act, section 5(4). This exclusion also applies with respect to financing of terrorism, under section 8 of that Act. Section 8(2) of the Act, which had stipulated that it was not ‘an offence to provide or collect funds intending that they be used, or knowing that they are to be used, for the purpose of advocating democratic government or the protection of human rights’ was repealed in 2007.

¹⁵⁰ Criminal Code of Australia, section 102.8.4(c). Similarly, section 119.4, which criminalises ‘Preparations for incursions into foreign countries for purpose of engaging in hostile activities’, does not apply where an individual ‘engages in conduct solely by way of, or for the purposes of, the provision of aid of a humanitarian nature’ (albeit the defendant bears the evidential burden – section 119.4(7)).

¹⁵¹ 18 USC, section 2339A (b)(1) defines ‘material support or resources’ (also for the purposes of section 2339B, which is the offence of providing material support to designated foreign terrorist organizations), as ‘any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials’. The exception had previously extended also to the provision of humanitarian assistance to persons not directly involved in terrorist acts, but was narrowed in 1996. As such, the current definition applies to the provision of medical substances only, not of medical care more broadly (United States v Farhane, 634 F.3d 127, 143 (2nd Cir. 2011); see also discussion in United States v Shah, 474 F. Supp. 2d 492 (S.D.N.Y 2007)). It is noted that the material support provisions make no reference to situations of armed conflict, or the idea that certain activities which would otherwise be proscribed may be protected under IHL.

¹⁵² 18 USC, para 2339B(h); see discussion in Holder v Humanitarian Law Project, 561 U.S. 1 (2010) at 13.

¹⁵³ In Holder, the U.S. Supreme Court held that: ‘‘‘Material support’’ is a valuable resource by definition. Such support frees up other resources within the organization that may be put to violent ends. It also importantly helps lend legitimacy to foreign terrorist groups—legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds—all of which facilitate more terrorist attacks’ (ibid, 29–31; cf. M (FC) & Others v HM Treasury, Case C-340/08, Judgment of the European Court of Justice (29 April 2010) para 61).

¹⁵⁴ A Debarre, ‘Safeguarding Humanitarian Action in Sanctions Regimes’ (International Peace Institute June 2019). One example is the list maintained by the European Union, on the basis of Common position 2001/931/CFSP, of ‘persons subject to restrictive measures’. This list was established to implement Council resolution 1373 (2001), is separate to that established by the EU to implement the Security Council's 1267 sanctions regime, and includes a number of entities and individuals that are not included on the 1267 list.

¹⁵⁵ As stated by Mackintosh and Duplat, ‘the basic principle that humanitarian action must be undertaken solely on the basis of need, without discrimination on political or other grounds, requires the fact of terrorist designation or other links to be ignored when dealing directly with individual beneficiaries. When an individual is in need, assistance which aims at preserving life, preventing and alleviating human suffering and maintaining human dignity cannot be denied. Any potential security disadvantage from such an act, for example where it is seen as helping the enemy, is considered to be outweighed by the humanitarian imperative in this situation’ (Mackintosh and Duplat (n 25) 117).

¹⁵⁶ Intent or knowledge is often required, but domestic legislation in this area is far from uniform. Depending on the jurisdiction, knowledge that the entity is designated as terrorist (irrespective of intention to further their aims – see, on this point, Holder (n 152) 16–17), recklessness as to this fact, or reasonable cause to suspect that the assistance may be used for the benefit of a designated group, may suffice. Also, where the entity is listed by the 1267 Committee, the laws of certain States provide that making an asset available to the entity is a strict liability offence, or that it creates a presumption that the assistance constitutes assistance to terrorism (Mackintosh and Duplat (n 25) 24–5, 28, 39, 45).

¹⁵⁷ Lewis et al. (n 33) 111–41; Debarre (n 67) 30–3; Buisonnière, M, Woznick, S and Rubenstein, L, The Criminalization of Healthcare (University of Essex and Johns Hopkins Bloomberg School of Public Health, June 2018) 15–22Google Scholar.

¹⁵⁸ Lewis et al. (n 33) 9–10, 111–41.

¹⁵⁹ US v Warsame, 537 F. Supp.2d 1005, 1019 (2008).

¹⁶⁰ Holder (n 152) 204.

¹⁶¹ Debarre (n 67) 8–10; JS Burniske and NK Modirzadeh, Pilot Empirical Survey Study on the Impact of Counterterrorism Measures on Humanitarian Action; and NK Modirzadeh, Comment on the Pilot Empirical Survey Study on the Impact of Counterterrorism Measures on Humanitarian Action (Harvard Law School Program on International Law and Armed Conflict, March 2017).

¹⁶² Protection of Civilians in Armed Conflict: Report of the Secretary-General (7 May 2019) S/2019/373, para 41

¹⁶³ On the problems of relying on prosecutorial discretion to clarify the reach of criminal legislation, see R v Gul (n 2) paras 35–37.

¹⁶⁴ Mackintosh and Duplat (n 25) 47–70. This and the other factors noted here appear to pose greater challenges to the work of smaller, local humanitarian agencies, than to large, well-established international organisations such as ICRC, Médécins Sans Frontières, and the UN Office for the Coordination of Humanitarian Affairs. The latter have greater protection in international law (including, potentially, immunity from domestic criminal proceedings of their officials for activities conducted in their official capacity) as well as a greater capacity to fulfil the screening and monitoring requirements imposed by donors, and thus retain the trust of the latter (Mackintosh and Duplat (n 25) 52, 70–1, 112–13; R Shanahan, ‘Charities and Terrorism: Lessons from the Syrian Crisis’ (2018 Lowry Institute) 9–10, 12.

¹⁶⁵ Gillard (n 67) 19–24. Gillard notes that in some cases, this has led NGOs to resort to informal and unregulated channels for transferring funds, making it more difficult to effectively monitor such funds, and so (from a counter-terrorism perspective) becoming counter-productive (ibid 10, 20).

¹⁶⁶ See, for example, Norwegian Refugee Council (n 3) 8, 16; Gillard (n 67); F Bouchet-Saulner, ‘IHL and Counter-Terrorism: Tension and Challenges for Medical Humanitarian Organizations’ Médecins sans Frontières Analysis (2 June 2016); Debarre (n 67) 4–10.

¹⁶⁷ Given that the protection which IHL extends to non-medical assistance is weaker, and that IHL itself envisages circumstances in which this assistance can lawfully be impeded (see discussion in Part 3 above), those parts of IHL can more readily be reconciled with the Security Council resolutions in question.

¹⁶⁸ See art 4, ICCPR; A v Secretary of State for the Home Department, X v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 A.C. 68; and Keith, K, ‘Protecting Human Rights in a Time of Terror: The Role of National and International Law’ (2005) 13 Waikato Law Review 3, 32–4Google Scholar.

¹⁶⁹ Art 1 common to the four Geneva Conventions of 1949; AP I, art 1(1). This obligation applies whether or not the State is a party to the armed conflict in question (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, at paras 158, 163(3)(D)).

¹⁷⁰ Art 25, UN Charter.

¹⁷¹ Pauwelyn, J, Conflict of Norms in International Law: How WTO Law Relates to Other Rules of International Law (Cambridge University Press 2003) 175ffCrossRefGoogle Scholar. The notion of conflict used in the ILC work on fragmentation was broader, as ‘a situation where two rules or principles suggest different ways of dealing with a problem’ (International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law – Report of the Study Group of the International Law Commission, A/CN.4/L.682 (13 April 2006) para 25).

¹⁷² Though as Jenks acknowledged, ‘The presumption against conflict is not, however, of an overriding character. It is one of the elements to be taken into account in determining the meaning of a treaty provision, but will not avail against clear language or clear evidence of intention’ (Jenks, CW, ‘The Conflict of Law-Making Treaties’ (1953) 30 BYBIL 429Google Scholar); ILC (n 171) paras 37, 42.

¹⁷³ S/RES/1452 (2002), para 1(a); S/RES/2253 (2015), para 75(a); S/RES/2368 (2017), para 81(a).

¹⁷⁴ S/RES/2286 (2016), preamble.

¹⁷⁵ S/RES/1844 (2008), para 3.

¹⁷⁶ S/RES/2385 (2017), para 33.

¹⁷⁷ S/RES/1718 (2006), para 8. A humanitarian exemption to the travel ban imposed under para 8(e) was already provided for in para 10 of this resolution, but the broader exemptions came later.

¹⁷⁸ S/RES/2397 (2017), para 25.

¹⁷⁹ See <https://www.un.org/securitycouncil/sanctions/1718/exemptions-measures/humanitarian-exemption-requests>. For an assessment of how this system has worked in practice, see the March 2019 report by the Panel of Experts established pursuant to resolution 1874 (2009), S/2019/171, paras 175–180, and Annex 85.

¹⁸⁰ Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion [2010] ICJ Rep 403, paras 94, 114.

¹⁸¹ In the five years since ISIL declared its ‘caliphate’ in June 2014, the Council has adopted 16 resolutions on global counter-terrorism efforts, seven of which were adopted under Chapter VII of the Charter.

¹⁸² High Level Review of United Nations Sanctions, based on United Nations document A/69/941-S/2015/432 (November 2015) recommendations 25 and 66, at 54–6.

¹⁸³ See S/PV. 8264, meeting of 22 May 2018, at 3, 29, 47–8, 51.

¹⁸⁴ See the July 2016 resolution on the Global Counter-Terrorism Strategy, A/RES/70/291, para 16.

¹⁸⁵ Gillard notes that ‘Security Council members are likely to be more open to adopting exemptions for humanitarian action in country-specific sanctions rather than in counterterrorism ones, where sensitivities are more acute and concerns about abuse are more serious’ (Gillard (n 67) 10).

¹⁸⁶ Zafar Iqbal (designated individual (QDi. 308), Redendo Cain Dellosa (QDi. 246), Al-Akthar Trust International (QDe. 121) and the Global Relief Foundation (QDe. 091). See also Debarre (n 67) 13.

¹⁸⁷ The subsequent practice of relevant United Nations organs was another factor noted by the ICJ as relevant to the interpretation of Council resolutions (ICJ Kosovo (n 180, at para 94).

¹⁸⁸ On which, see, generally ILC (n 171) at paras 56–122 (lex specialis) and 223–250 (lex posterior).

¹⁸⁹ See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, para 25; ILC (n 171) at para 103.

¹⁹⁰ ICJ Wall (n 169) at para 106.

¹⁹¹ See, for example, Debarre (n 67) 26–9; Buisonnière et al. (n 157) 14, 29

¹⁹² One exception is Lewis et al. (n 33) 103.

¹⁹³ ILC (n 171), paras 328–360. See also the Vienna Convention on the Law of Treaties, 1155 UNTS 331, art 30(1). On art 103 generally, see Paulus, A and Leiβ, JR, ‘Article 103’ in Simma, B et al. (eds), The Charter of the United Nations: A Commentary, Third Edition – Volume II (Oxford University Press 2013) 2110Google Scholar.

¹⁹⁴ Emphasis added.

¹⁹⁵ S/RES/748 (1992); the Court noted that ‘both Libya and the United States, as Members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter […] and whereas in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement, including the Montreal Convention’ (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America), Provisional Measures, Order of 14 April 1992 [1992] ICJ Rep 114, at para 42).

¹⁹⁶ S/RES/670 (1990), preamble, para 2.

¹⁹⁷ The Council ‘call[ed] upon all States and all international and regional organizations to act strictly in conformity with this resolution, notwithstanding the existence of any rights granted or obligations conferred or imposed by any international agreement or of any contract entered into or any licence or permit granted prior to the entry into force of the measures imposed [by the Council]…’ (S/RES/1267 (1999), para 7).

¹⁹⁸ R (on the application of Al-Jedda) (FC) (Appellant) v Secretary of State for Defence (Respondent), [2007] UKHL 58, at para 35; the European Court of Human Rights arrived at a different interpretation of the Security Council resolution at issue in that case, but it did not depart from the findings of the House of Lords regarding the effect of art 103. (Al-Jedda v The United Kingdom, App No 27021/08, Judgment (7 July 2011) paras 101–109).

¹⁹⁹ See Paulus and Leiβ (n 193) 2119–20, 2133.

²⁰⁰ ILC (n 171) at paras 333–334. This appears particularly appropriate in the present case, in view of the nature of the non-Charter obligations at issue. On a related note, art 60(5) of the 1969 Vienna Convention on the Law of Treaties excludes from the standard rules on termination following material breach, ‘provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties’ (see Keith, K, ‘Bilateralism and Community in Treaty Law and Practice – Of Warriors, Workers, and (Hook-)Worms’ in Fastenrath, U et al. (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford University Press 2011) 763Google Scholar).

²⁰¹ 2017 EU Directive, Recital 38.

²⁰² ICRC 2015 (n 67) 21; Debarre (n 70) 27; Gillard (n 67) 6–7, 26-–8; Mackintosh and Duplat (n 25) 117–18; Norwegian Refugee Council (n 3) 11, 34.

²⁰³ See eg Debarre (n 67); see also Mackintosh and Duplat (n 25) 46.

²⁰⁴ As noted above, IHL envisages the imposition of certain practical requirements on the delivery of non-medical assistance. The imposition of such requirements by donors has been criticised in commentaries, on the basis that they may place unduly onerous burdens on humanitarian agencies (Debarre (n 67) 9, 33). In the opinion of the present author, these can constitute reasonable, practical measures which could provide the necessary assurance to donors and, more to the point, reduce the possibility of well-intentioned assistance indirectly facilitating the acts of terrorist organisations. Moreover, as Gillard notes, if humanitarian agencies do not engage with States and the UN to explain the due diligence measures which they are already implementing to address such risks, ‘it will be the Security Council or the EU that sets the conditions’ (Gillard (n 67) 12).

²⁰⁵ Lewis et al. (n 33) 5, 38–63.

²⁰⁶ In this context, it should be noted that the classification of armed conflicts, including those in which terrorist groups are active, can be fluid: while an IAC existed in Afghanistan in 2001, by 2002, in view of the positions of the States involved, this had developed into a NIAC (see discussion in Pejic, J, ‘Extraterritorial Targeting by Means of Armed Drones: Some Legal Implications’ (2014) 96 International Review of the Red Cross 893, 81CrossRefGoogle Scholar).

²⁰⁷ Lewis et al. (n 33) 88–9.

²⁰⁸ At time of writing, Additional Protocols I and II had 174 and 168 parties, respectively.

²⁰⁹ States which have not signed either Protocol include: Israel, Pakistan, Somalia, Turkey, and the United States of America; Syria and Iraq have ratified the First Additional Protocol but not the Second

²¹⁰ See Financing Convention, art 7; S/RES/1373 (2001), paras 1(b)–(d), 2(d).

²¹¹ Lewis et al. (n 33) 8, 63.

²¹² In United States v Farhane, the court noted that the defendant ‘was not prosecuted for performing routine duties as a hospital emergency room physician, treating admitted persons who coincidentally happened to be al Qaeda members. [He] was prosecuted for offering to work for al Qaeda as its on-call doctor, available to treat wounded mujahideen who could not be brought to a hospital precisely because they would likely have been arrested for terrorist activities’ (Farhane (n 151), at 141). This distinction was also made in Shah (n 151).

²¹³ See, for examples, attacks carried out by Al-Shabaab in Kenya (notably the Westgate shopping centre in September 2013, and Garissa University in April 2015), and the series of attacks carried out by ISIL operatives in Paris in November 2015. On the relevant provisions of IHL, see Saul (n 11) 217–21.

²¹⁴ See, for example, <https://www.hrw.org/news/2019/04/02/un-security-council-resolution-undermines-aid-human-rights-work>; <https://www.justsecurity.org/64158/correcting-course-avoiding-the-collision-between-humanitarian-action-and-counterterrorism/>.

²¹⁵ On the latter, see Debarre 2019 (n 154).

²¹⁶ The preparation of model legislation is already common in both fields, including through the work of the UN Office on Drugs and Crime (<http://www.unodc.org/unodc/en/legal-tools/model-treaties-and-laws.html>), and the ICRC (<https://www.icrc.org/en/document/national-implementation-ihl-model-laws>).

²¹⁷ S/RES/2462 (2019), para 24.