In 1991, as the United Nations (UN) was creating the Department for Humanitarian Affairs, the UN General Assembly (UNGA) outlined some principles for humanitarian action. These principles were derived from the Fundamental Principles of the International Red Cross and Red Crescent Movement (the Movement),Footnote 1 and included humanity, neutrality, impartiality and independence.Footnote 2 These principles have underpinned modern humanitarian action and practice ever since.
However, in the context of new legal frameworks being developed as part of counterterrorism strategies, the application of the humanitarian principles is increasingly being challenged. There are instances of sanctions regimes and counterterrorism legislation effectively prohibiting the provision of material support to designated terrorist organizations (DTOs), which in some cases is having a knock-on effect on the principled delivery of humanitarian aid. In other instances, contractual obligations required by donors directly threaten the neutral and independent status of humanitarian organizations. If one examines the unintended consequences of such legislation, it appears that States are effectively legislating against principles they have supported and endorsed through both hard and soft law. While some States, like Australia, have sought to minimize the unintended humanitarian consequences of counterterrorism legislation by offering protections to humanitarian actors through exemptions, these exemptions are rarely comprehensive and often limited in scope. Whether protection in the courtroom is sufficient in terms of protecting a humanitarian organization's reputation and ability to provide principled assistance to all in a neutral and impartial manner is still in question.
The year 2015 marks the 50th anniversary of the Fundamental Principles of the Movement, but even beyond the Movement, these principles have been espoused by many in the humanitarian system, and the humanitarian sector has an interest in defending them. This article will explore the origins of the humanitarian principles, and how the first four principles of the Movement (humanity, neutrality, impartiality and independence) came to characterize effective humanitarian action. The article will then discuss some of the ways in which these principles are threatened both by practice and by law, with a particular focus on the Australian context, and discuss the implications that such threats have for people in need of humanitarian assistance. Finally, the article will conclude by suggesting how the principles can be reclaimed and protected for the future of effective, impartial humanitarian action.
The humanitarian principles: A brief history
Whilst the origin of modern-day humanitarian principles is often credited to the Movement, and in particular to one of the Movement's founding fathers, Henry Dunant, broad concepts of humanitarian principles date back to the beginning of recorded history.Footnote 3 Similarly, though humanitarian principles are championed as essential for effective humanitarian response, anthropologists have found evidence that as far back as prehistoric times, societal concepts of “charity” were derived from a sense of collective survival rather than altruism.Footnote 4
The humanitarian principles, particularly impartiality – the concept of non-discrimination and the notion that urgency and distress ought to dictate which individuals’ cases are given priority – are found in cultures and religions around the world.Footnote 5 This knowledge has helped demonstrate that these principles were never solely the concern of western ideals or gentlemen such as Henry Dunant. From the obligations of zakat in IslamFootnote 6 and tzedakah in Judaism;Footnote 7 to the dāna in HinduismFootnote 8 and Buddhism,Footnote 9 principles abound that the most vulnerable members of society should be assisted in times of need. Impartiality in providing assistance to others is therefore not a new concept.
Ideas regarding limiting the suffering of war had already begun to emerge by the time Dunant had witnessed the battle of Solferino in 1859. It was Dunant, rallying villagers to assist the wounded and dying from both sides of the battle of Solferino, who began to solidify the idea of impartiality as a cornerstone of humanitarian response.Footnote 10 Initially, the notion of impartiality was linked to Dunant's idea of voluntary relief societies undertaking humanitarian activities on the battlefield. However, when the 1864 diplomatic conference for the first Geneva Convention began, Dunant advocated that impartiality should also apply to military medical personnel. His idea was successful and the obligation of impartial assistance to all wounded persons on the battlefield became one of the cornerstones of international humanitarian law (IHL), binding government armed forces and humanitarian organizations alike.Footnote 11
This shared legal obligation on armed forces and medical personnel, enshrined in Article 6 of the 1864 Geneva Convention, went further than impartiality – the Convention also cemented the idea of neutral humanitarian assistance. For instance, Article 5 stated: “Generals of the belligerent Powers shall make it their duty to notify the inhabitants of the appeal made to their humanity, and of the neutrality which humane conduct will confer.”Footnote 12 Military ambulances and hospitals were explicitly recognized as neutral and therefore required to be respected and protected,Footnote 13 along with military medical personnel and chaplains.Footnote 14 Further, all those evacuating the wounded and sick, along with the facilities used to do this, such as ambulances and hospitals, were to be considered “absolutely neutral”.Footnote 15
The principles enshrined in the 1864 Convention have withstood the passage of time as the Convention has been revised, updated and consolidated. Indeed they have been rearticulated and expanded throughout the Geneva Conventions and their Additional Protocols.Footnote 16 Of particular note is Article 3 common to the four Geneva Conventions, which provides a “right of initiative” for “an impartial humanitarian body” to care for the wounded and sick, further solidifying the clear necessity of impartial humanitarian action under international law.Footnote 17 This is noteworthy because while the Geneva Conventions deal predominantly with international armed conflict, common Article 3 sets out the most basic obligations required in non-international armed conflicts.Footnote 18 The inclusion of the right of initiative of impartial humanitarian bodies in common Article 3 demonstrates the importance given by States to ensuring that impartial humanitarian assistance is possible regardless of the categorization of the conflict, and cements it as one of the most fundamental expectations of States during times of armed conflict.Footnote 19 Additional Protocol I strongly reinforces this in its Article 81, stating that States party to a conflict must facilitate the humanitarian work of Red Cross and Red Crescent National Societies, and where possible other humanitarian organizations, in favour of the victims of conflict in accordance with the principles of the Conventions and the Movement.Footnote 20 Thus, over 150 years since the adoption of the First Geneva Convention in 1864, the idea of neutral and impartial assistance for the sick and wounded – from both belligerent powers and humanitarian actors – has remained a bedrock of IHL. The unique universality of the Geneva Conventions makes these obligations all the more definite.Footnote 21
Today, the humanitarian principles of humanity, impartiality, neutrality and independenceFootnote 22 are four of the seven Fundamental Principles of the Movement, the largest international humanitarian network in the world, and are enshrined in modern-day international law as obligations of States and humanitarian actors.Footnote 23 The Movement has refined and reaffirmed these principles in practice and “soft law”, starting with their formal adoption into the Movement Statutes in 1921.Footnote 24 Since then, the Fundamental Principles have been reaffirmed at International Conferences of the Movement,Footnote 25 with their current form being adopted in 1965. This required not only the consent of Movement components (the International Committee of the Red Cross (ICRC), the International Federation of Red Cross and Red Crescent Societies, and the National Societies), but also the High Contracting Parties to the Geneva Conventions.Footnote 26 This further demonstrates the strong commitment made by all States to uphold and respect these essential humanitarian principles.Footnote 27
The first three principles – humanity, impartiality and neutrality – were also strongly affirmed as core principles in humanitarian response within the UN system in 1991, when the UNGA adopted Resolution 46/182. The Annex to that resolution outlines guiding principles for humanitarian assistance and notes that “humanitarian assistance must be provided in accordance with the principles of humanity, neutrality and impartiality”.Footnote 28 These principles were again reaffirmed in a second UNGA resolution in 2004.Footnote 29
In 1992, after the adoption of Resolution 46/182, the Steering Committee for Humanitarian Response and the ICRC developed a comprehensive document on humanitarian principles for the humanitarian system at large.Footnote 30 As a result, the 1994 Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief was developed.Footnote 31 Absent was any direct reference to neutrality, which was viewed as too constrictive a principle to apply universally to the sector. However, next to the principles of humanity and impartiality, the authors included the fourth humanitarian principle discussed above, independence. In 2014 the Core Humanitarian Standard on Quality and Accountability, a document resulting from the Joint Standards Initiative,Footnote 32 reintroduced neutrality as one of the four “core humanitarian standards” guiding humanitarian action, alongside humanity, impartiality and independence.Footnote 33
Over time, these principles have been affirmed and reaffirmed in international fora, such as the Sphere project,Footnote 34 the European Consensus on Humanitarian AidFootnote 35 and the Good Humanitarian Donorship principles.Footnote 36 These projects and initiatives, often instigated by States, persistently reaffirm the humanitarian principles and demonstrate that governments are aware of their obligations not just to understand but also to respect these principles in humanitarian action.Footnote 37
Legislating at the expense of humanitarian principles: Unintended consequences?
Despite these commitments to the humanitarian principles, new threats to global security and the ensuing political responses to them are having a dangerous effect on the ability of humanitarian organizations to consistently apply the principles. While States grapple with terrorism and other forms of violent extremism, two security-based responses are having an impact on principled humanitarian action: increasingly strict parameters on conditions for funding for humanitarian organizations, and the adoption of new and increasingly rigid counterterrorism legislation. The consequences have been the creation of laws and financial regulations that run counter to the long-established humanitarian principles. This in turn risks undermining the basis of the modern humanitarian system.
On 20 September 2001, George W. Bush stated in his address to a Joint Session of Congress and the American people: “Either you are with us or you are with the terrorists.”Footnote 38 In this statement the president set a clear divide between those supporting the action and approach of the United States and those supporting terrorism. However, in reality – particularly in principled humanitarian action – this divide is not so clear-cut. In humanitarian response situations, where the principles of impartiality and neutrality dictate one's actions or approach, there is no room for taking sides.
As a result of this “with us or against us” approach, tensions between the humanitarian principles and concerns relating to the sponsorship, support and expansion of terrorist activities have increased.Footnote 39 In the immediate aftermath of the September 11 attacks on the World Trade Centre in New York, the United Nations Security Council (UNSC) passed Resolution 1373 recognizing international terrorism as a threat to international peace and security. Acting under Chapter VII of the UN Charter, the Security Council called on member States to implement domestic measures to “prevent and suppress the financing of terrorist acts”Footnote 40 and to “refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts”.Footnote 41 States should also
[p]rohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons.Footnote 42
No humanitarian or protection exemptions were included in the drafting of Resolution 1373, despite the obvious conflict caused by the practice of providing neutral and impartial aid.Footnote 43 This is a noticeable absence that has carried through into many domestic anti-terrorism laws – something that will be addressed below in the discussion of the Australian case.
Many States had already enacted counterterrorism laws prior to 2001, but the shock of September 11, combined with this directive from the Security Council in response to the threat of increasing terrorism, provided the impetus to implement stronger legislation. A wave of new, far-reaching (and often hastily drafted) anti-terrorism laws swept across the globe. Measures were introduced prohibiting financial and material support to terrorist groups and ensuring cooperation with other governments on anti-terrorism activities. This cooperation granted the capacity to investigate, arrest and prosecute individuals engaged in terrorist acts.Footnote 44 However, perhaps unintentionally, the reach of these measures is having a significant effect on humanitarian actors, particularly in their ability to provide principled aid and training to groups that have been designated as terrorist organizations. This has given rise to a growing tension between counterterrorism responses and principled humanitarian action.
Three of the important consequences of these legislative changes are the criminalization of providing material or other support either directly or indirectly to terrorists, the implementation of broad sanctions regimes, and the contractual obligations that donors place on humanitarian organizations delivering assistance to those who may live in territory controlled by a DTO. In some cases, these measures impede humanitarian organizations in their ability and capacity to provide assistance to those in greatest need, and to do so in a manner consistent with the humanitarian principles; and yet, examples of all three areas of concern are readily identifiable in national counterterrorism regimes around the world.
This issue – that counterterrorism measures are threatening to undermine principled humanitarian action – has been extensively discussed as regards the United States.Footnote 45 This is primarily because the United States presents the most obvious case study, as its counterterrorism regime is extensive and a number of its anti-terrorism laws have been tested in the courts. What is not as widely known is how the Australian context has developed, and how it compares with the US regime.
Australia's anti-terrorism laws: An overview
Similar to other jurisdictions, Australian laws relating to counterterrorism were relatively disparate prior to September 2001 and ranged from acts from the 1970s dealing with crimes committed on aircraftFootnote 46 to legislation dealing with the recruitment and training of mercenaries.Footnote 47 In 2002, the Australian federal parliament embarked on a turbulent period of anti-terrorism lawmaking.Footnote 48 In the decade following September 11 and the adoption of UNSC Resolution 1373,Footnote 49 Australia enacted a total of fifty new federal laws, with many others enacted in various States and Territories of Australia.Footnote 50 At the time of writing, sixty-four pieces of counterterrorism legislation had been passed into law,Footnote 51 establishing a new legal reality within the country – a permanent, entrenched anti-terror regime reflective of a persistent threat of terrorism, rather than a “transient, short-term legal response”Footnote 52 to the September 11 attacks. In his book The 9/11 Effect: Comparative Counter-Terrorism, Kent Roach describes Australia as “exceed[ing] the United Kingdom, United States and Canada in the sheer number of new antiterrorism laws that it has enacted since 9/11”.Footnote 53 He writes that “this degree of legislative activism is striking compared even to the United Kingdom's active agenda and much greater than the pace of legislation in the United States or Canada”.Footnote 54
The anti-terrorism laws encompass a wide range of issues, but as regards the restrictions placed on humanitarian organizations, several provisions under Australia's Criminal Code Act 1995 (Cth) (Criminal Code)Footnote 55 are of particular interest. These provisions fall into three categories: material support, sanctions and contractual obligations. Despite the proliferation of legislation since 2001, in several ways the Australian legislative experience has been quite different to that of the United States. This is seen most notably in relation to exemptions in various legislative provisions for humanitarian assistanceFootnote 56 – though these are not uniformly included across all relevant legislative provisions as a matter of course.
For example, the Criminal Code makes it an offence to associate with a terrorist organization – something that is unique among most first-world counterterrorism regimes. Under division 102.8 of the Act, a person commits an offence if, on two or more occasions, he or she intentionally associates with another person who is a member of, or a person who promotes or directs the activities of, a terrorist organization.Footnote 57 However, subsection 102.8(4) explicitly identifies several exemptions to this provision, including association for the sole purpose of “providing aid of a humanitarian nature”.Footnote 58
As mentioned above, exemptions for humanitarian aid are not included across all relevant legislative provisions. For example, there are two provisions relating to training. One is found in division 101.2 of the Criminal Code and relates specifically to offences of providing or receiving training connected with terrorist acts.Footnote 59 These offences mirror UK and European counterterrorism legislation.Footnote 60 The second is found in division 102.5, where it is an offence to intentionally provide training to, receive training from or participate in training with a terrorist organization.Footnote 61 This is an extremely broad provision with no exemption for training that may form part of a purely humanitarian mission, for example the provision of first-aid training or dissemination of IHL. As regards dissemination of IHL, this is in direct contravention of the obligation placed on both States and National Societies and the ICRC to disseminate the laws of war.Footnote 62
Under division 102.6, it is an offence to intentionally and directly or indirectly receive funds from, or make funds available to, a terrorist organization.Footnote 63 Again, no exemption based on humanitarian grounds has been written in as a defence. This could possibly mean that a humanitarian agency which was, for example, compelled to pay for access into a region controlled by a DTO in order to legitimately deliver humanitarian assistance to the civilian population would be in breach of the law.
Attached to these provisions are penalties that depend on whether these acts were done in the full knowledge that the group in question was a terrorist organization (twenty-five years’ imprisonment) or whether the person was simply reckless in failing to ascertain this information (fifteen years’ imprisonment).Footnote 64 Similarly to the US laws, Australian legislation claims extraterritorial jurisdiction over these crimes and can prosecute non-citizens with the consent of the Attorney General, although at the time of writing, no prosecutions had been made under the Criminal Code.Footnote 65 These provisions, particularly those void of a humanitarian exemption, pose significant challenges to Australia's humanitarian community and the ability of humanitarian actors to engage effectively in principled humanitarian assistance.
In addition, there is uncertainty regarding the extent of the exemption for “providing aid of a humanitarian nature”, as the term is not defined in the Criminal Code. Arguably, therefore, the exemption may not extend to activities which are illegal under other provisions of the Criminal Code, meaning that a contravention of one counterterrorism provision could result in many other offences also applying (in a similar way that illegal activities may disqualify an organization from a status as a charity).
There is also uncertainty as to the extent to which humanitarian organizations can associate and cooperate with other organizations (such as partner NGOs) which may themselves be involved in breaches of the Criminal Code, either under the express counterterrorism provisions or through other means, such as provisions aimed at combating organized crime.
Australia also made recent legislative changes with extremely broad prohibitions for Australian citizens and residents entering or remaining in a “declared area”.Footnote 66 Specifically, division 119.2 of the Criminal Code makes it an offence to intentionally enter, or remain in, an area in a foreign country that has been labelled a “declared area” by the foreign affairs minister, where the person knows or should have known that the area is a declared area. At the time of writing, the Australian foreign affairs minister has declared the Mosul district in Ninewa province in Iraq and Al-Raqqa province in Syria to be areas invoking division 119.2.Footnote 67 This provision originated from the Australian government's concern that “Australians who travel to conflict zones would return … with skills and intentions acquired from fighting or training with terrorist groups”.Footnote 68 The offence carries with it absolute liability and imprisonment for up to ten years.Footnote 69 While there have been some obvious criticisms of the broad scope of this provision, it does include an exemption for those remaining “solely for legitimate purposes”, which includes providing “aid of a humanitarian nature”.Footnote 70
Unintended humanitarian consequences: Three areas of concern
In 2007, in the case of United States of America v. Tarik Ibn Osman Shah, Rafiq Sabir and Mahmud Faruq Brent, doctors providing medical support to Al Qaeda were convicted under material support laws.Footnote 71 Three years later, in the case of Holder v. Humanitarian Law Project,Footnote 72 the US Supreme Court ruled that the provision of training by a human rights organization to a designated terrorist organization could constitute material support under the relevant statute, irrespective of the humanitarian nature of the training provided.Footnote 73 These consequences have become a real concern among humanitarian organizations since the post-9/11 introduction of counterterrorism laws throughout the world. While Australia's position is not so different, a higher mens rea standard and the existence of a humanitarian exemption within the Criminal Code makes it difficult to imagine the realistic prosecution of an organization that is operating in accordance with the humanitarian principles. However, the way in which these laws are written still threatens the ability of humanitarian organizations to provide support, resources and training to all people everywhere in a neutral and impartial way.
Material or other support
The first counterterrorism measure of significance for humanitarian organizations is the nature of material support or resources that are prohibited by law. In the United States, an act considered to be in “material support” of terrorism is punishable by fifteen years’ imprisonment, regardless of the nationality of the accused. Under US federal law, “material support or resources” includes
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 (one or more individuals who may be or include oneself), and transportation, except medicine or religious materials.Footnote 74
Although there is an exemption for “medicine and religious materials”,Footnote 75 it is significant that an individual does not have to intend to further an organization's terrorist activities to be found guilty under the statute.
Australian provisions relating to support are narrower than US counterterrorism laws. Under Australian counterterrorism laws, a person will have committed an offence if they provide “support or resources” that would help an organization engage (directly or indirectly) in preparing, planning, assisting in or fostering the execution of a terrorist act.Footnote 76 In the United States, there are restrictions on the provision of support to particular DTOs – that is, other than “medicine or religious materials”, it seems that the provision of any material support or resources to these organizations, irrespective of its humanitarian nature, would invoke US criminal law.Footnote 77
In Australia, even though no explicit exemptions for humanitarian actors are given, if support or resources are provided in an independent, impartial and neutral manner, and not in aid of a terrorist act, it is difficult to envisage that humanitarian organizations would find themselves in contravention of the support provision.Footnote 78 This is because the legislation requires that donors “intentionally [provide] to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation”, and paragraph (a) includes “preparing, planning, assisting in or fostering the doing of a terrorist act”.Footnote 79
Interesting for the purposes of comparison is New Zealand's Terrorist Suppression Act,Footnote 80 which takes its humanitarian exemption one step further in this regard. It includes a list of “reasonable excuses” for the offence of providing “property, or financial or related services” to a terrorist organization. The types of property which fall within the definition of a “reasonable excuse” include food, clothing, medicine and other items that serve to do no more than “satisfy essential human needs of (or of a dependent of) a designated individual”.Footnote 81 This provision more fully appreciates the principle of impartiality.
As mentioned previously, in Australia it is an offence to intentionally make funds available to, or collect funds for or on behalf of, a terrorist organization.Footnote 82 While this has not yet been tested in court, an accusation made by the Israel Law Center (Shurat HaDin) against World Vision Australia and AusAID shone a light on the potential humanitarian gap in the legislation. In October 2012, Shurat HaDin claimed to have evidence supporting an allegation that World Vision Australia and AusAID were funding a proscribed terrorist organization, the Popular Front for the Liberation of Palestine (PFLP), through the distribution of funds to a Palestinian NGO, the Union of Agricultural Work Committees (UAWC).Footnote 83 As part of its work, the UAWC has been responsible for delivering plant and seedling nurseries to the West Bank and Gaza in an attempt to provide food security to over 1,000 low-income households in those areas.Footnote 84 An AusAID examination eventually concluded that there was no evidence to support this allegation, making assurances that “project funding from AusAID through World Vision is not being used to support terrorists but is being spent on agreed, high priority development activities”.Footnote 85 However, if the allegations had been proven, the fact that the funds were intended solely for a humanitarian purpose would not have been a valid defence. Despite these findings, and given the non-existence of a humanitarian exemption to the offence of getting funds to, from or for a terrorist organization, World Vision Australia might have found itself liable for criminal activity, irrespective of whether or not those funds were intended for a humanitarian purpose. While IHL does not grant humanitarian organizations unlimited humanitarian access to conflict zones, treaty and customary law do expressly allow for humanitarian access,Footnote 86 and these counterterrorism measures are threatening humanitarian organizations and their ability to provide such access.
As regards “training”, the first provision relates to providing or receiving training specifically related to terrorist acts,Footnote 87 following a similar approach taken in the UK and Europe as mentioned above. Here the Australian provisions are sufficient, and not a matter of concern to humanitarian actors. Again, as a point of comparison, the UK and European approaches provide greater detail and clarity regarding what would constitute a training-related terrorism offence. In the UK, for example, the Terrorism ActFootnote 88 makes it an offence to provide or receive instruction in the making or use of firearms, radioactive material or weapons designed or adapted for the discharge of any radioactive material, explosives, or chemical, biological or nuclear weapons.Footnote 89 Further legislation adopted in 2006 in the UK defines “training”, and sets out specific acts that constitute an offence, thus placing narrow parameters around the 2000 Act.Footnote 90
Similarly, in the 2005 Council of Europe Convention on the Prevention of Terrorism, “training for terrorism” is defined as:
to provide instruction in the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or in other specific methods or techniques, for the purpose of carrying out or contributing to the commission of a terrorist offence, knowing that the skills provided are intended to be used for this purpose.Footnote 91
However, the second tranche of training offences in Australia goes beyond the training of terrorist acts, giving cause for concern for humanitarian actors. These provisions seem to lack both clarity and feasible parameters around training for and by humanitarian organizations. The law states that a person commits an offence if he or she intentionally provides training to, receives training from or participates in training with a terrorist organization.Footnote 92 There are two issues of particular concern here. The first is that there is no definition given in the legislation for “training”, meaning that there is a lack of clarity in relation to what will constitute a crime under this section. The second is the very broad definition given for a terrorist organization in this section, as it includes blanket coverage of any organization specified in the regulations.Footnote 93 These two factors could severely limit the ability of humanitarian actors to engage with groups in any given area for humanitarian-related training, such as first-aid training or the dissemination of IHL. The prohibitions may also weaken the ability of humanitarian organizations to provide assistance if that assistance, or gaining access to a population in need of that assistance, necessitates engagement with a terrorist organization, the nature of which could be reasonably seen as “training”. Further, being limited by and accepting of what the Australian government declares a “terrorist organization” potentially jeopardizes the impartiality, neutrality and independence of humanitarian actors.
Finally, read alongside the amendments made by the Australian Foreign Fighters Act,Footnote 94 the ambiguous training provision also creates potential complications for humanitarian actors entering or remaining in a “declared area” of a foreign country without a “legitimate purpose”.Footnote 95 Not only does this provision have implications for freedom of movement, but, despite the inclusion of an exemption for the provision of humanitarian aid,Footnote 96 it also raises legitimate concerns for humanitarian actors providing, receiving or participating in training in a “declared area”. This is, so far, an untested area of the law.
This ambiguity over what would constitute training under Australia's current counterterrorism legislation was raised in a Supreme Court of Victoria case regarding the provision of financial support to the Tamil Tigers following the 2004 Boxing Day tsunami.Footnote 97 In his conclusions, the presiding judge made reference to Dr. John Whitehall, who at that time was chairman of paediatrics and child health at the University of Western Sydney. In 2004, Dr. Whitehall travelled to Sri Lanka and was there when the Boxing Day tsunami hit and devastated the country. During his time in Sri Lanka, Dr. Whitehall provided paediatric training to young medical students who he later came to learn were from the medical wing of the proscribed terrorist organization, the Liberation Tigers of Tamil Eelam (LTTE). Even though the training was unrelated to the terrorist activities of the organization and was done purely for humanitarian purposes, his acts still fall within the scope of “training a terrorist organisation or receiving training from a terrorist organisation” under division 102.5 of the Australian Criminal Code. The judge asked: “Is Dr Whitehall guilty of an offence …? Technically he might be. I suspect he knows not of this offence, but … we manage to turn a blind eye.”Footnote 98 Obviously the approach of hoping law enforcement and the judiciary “turn a blind eye” to anything that may fall foul of the legislation is not a satisfactory one for many humanitarian organizations who are faced with ongoing uncertainty as to what limits these provisions place on their policies and activities across a range of complex contexts.
These laws, which essentially withhold humanitarian training or relief from certain groups of people, erode the very concept of impartiality in the provision of humanitarian assistance. Such assistance must be based on need only, and not on criteria relating to potential or actual affiliation to certain groups deemed terrorist organizations by a particular government.
These consequences are therefore disturbing. The apparent criminalization of the provision of medical assistance is in direct contrast to a long tradition of respect and concern for the health and welfare of one's own troops, but also those of the enemy – something that has been constantly reiterated by States since the first Geneva Convention of 1864. The benefit of IHL is the reciprocity of care and treatment, for those hors de combat or the wounded or sick on the battlefield.Footnote 99 More generally, respect for hospitals and medical centres, and for doctors and health-care workers, has also long been a central part of international law and international discourse. This principle of IHL was reaffirmed at the 31st International Conference of the Red Cross and Red Crescent, where the Movement and States passed a resolution focused on “Health Care in Danger” and reiterated the need for States to “recall the obligations to respect and protect the wounded and sick, as well as health-care personnel and facilities” consistent with their international legal obligations.Footnote 100 This resolution has provided the basis of a global Movement campaign on the protection of the medical mission, acknowledging that medical personnel and services are increasingly under threat. More recently, the UN has debated the fact that health-care is increasingly under threat in both armed conflict and other situations of violence, and has again called on all parties to conflict to respect medical facilities, medical transport and medical and health-care professionals.Footnote 101 The principle of good treatment and respect by all parties to a conflict for each other's combatants – the principle of impartiality in action – is key to the conduct of armed conflict being consistent with international law. If one side criminalizes such care and assistance, even in response to apparently indiscriminate and disproportionate conduct from the other side, the delicate balance of IHL is challenged, and the humanitarian system that has for so long supported the victims of armed conflict will come under threat.
Sanctions
In addition to the limits on the kinds of support that can be offered to populations in need, the second measure affecting humanitarian agencies is the wide range of sanctions regimes that have had a significant impact on the freedom of humanitarian action. Some of these regimes target specific groups considered a threat to international peace and security. Kate Mackintosh explains how humanitarian organizations, by bringing assistance to civilians living in areas controlled by people or groups listed under these sanctions regimes, could be seen as providing “material support” to terrorists.Footnote 102 Using the US laws as an example, Mackintosh says, “as long as the individual who provides any of the listed resources knows either that the group is on the list or that it engages in terrorist activities as defined by U.S. law, he or she will be in violation of U.S. criminal law”.Footnote 103 These sorts of restrictions expose humanitarian organizations and their staff to criminal liability, which was the case with the Humanitarian Law Project's training activities in Holder.Footnote 104
As many scholars have observed, Somalia has become a leading case study for the humanitarian fallout, and decline in the perception of principled humanitarian action, resulting from the inability of NGOs to make the necessary assurances against aid misappropriation under sanctions regimes.Footnote 105 In 2008, UNSC Resolution 1844Footnote 106 implemented sanctions against organizations and individuals in Somalia, including Islamist DTO Al-Shabaab, which controlled a significant amount of territory in southern Somalia. The result was a suspension of a much-needed $50 million in humanitarian aid to Somalia in 2009.Footnote 107 In 2010, the USAID Famine Early Warning Systems Network first anticipated the food crisis in Somalia. In that same year, the UNSC created a humanitarian exemption to the Somali sanctions regime due to the “importance of humanitarian aid operations”.Footnote 108 Despite this, humanitarian agencies were still slow to respondFootnote 109 and the US government did not issue even limited licences to NGOs until August 2011, by which time the famine had reached its peak.
While the causes of the famine are complex and multidimensional and will not be addressed in this paper, it is estimated that nearly 260,000 people died, half of them children younger than five years old. The myriad difficulties in delivering humanitarian assistance – the demands of al-Shabaab, general insecurity in the region, and the complexities and fear of prosecution under counterterrorism legislation – all contributed to the fact that 4.6% of the overall population in southern Somalia died.Footnote 110 This is a clear indicator that the humanitarian system is at breaking point, and work needs to be done to address these difficult issues.
In Australia, UN sanctions regimes are given effect under the Charter of the United Nations Act 1945 (Cth) (UN Charter Act).Footnote 111 Under this act, the foreign minister is granted the power to list proscribed persons or entities for the purposes of implementing UNSC resolutions, including Resolution 1373.Footnote 112 Australia also imposes restrictions on financing terrorism through autonomous sanctions regimes, which may supplement UNSC sanctions.Footnote 113 Both sets of sanction laws dictate the “consolidated list” of proscribed persons and entities, which at the time of writing contained the names of 3,091 individuals and entities that are subject to asset freezes and/or travel bans under the laws.Footnote 114 Any breach of these sanction laws will trigger penalties of up to ten years’ imprisonment as well as substantial fines.Footnote 115
Section 21 of the UN Charter Act makes it an offence to directly or indirectly make any assets available to proscribed persons or entities as listed by the foreign minister.Footnote 116 Strict liability applies to this offence, meaning that to fall foul of this provision, there is no need for an individual to have intended to support terrorism – simply the act of providing an asset to a proscribed person or entity will suffice.Footnote 117 The Supreme Court of Victoria has further interpreted this mental element, holding that “it is sufficient for the prosecution to show that any accused was aware of a substantial risk of proscription and that such a risk was unjustifiable”,Footnote 118 thus essentially finding “recklessness” to be the relevant mental test for this offence.
This Supreme Court case, R v. Vinayagamoorthy, concerned three Tamil Australians who were being prosecuted under the UN Charter Act for providing resources to the LTTE.Footnote 119 The defendants pleaded guilty to the charges, but maintained that the funds and materials provided were solely humanitarian in nature. In sentencing them, the Court accepted that their motivations were “to assist the Tamil community in Sri Lanka” and that “the only real vehicle to do so was by dealing with the LTTE”. Although satisfied that their general motivations had a “humanitarian bent”, the Court did not find their contributions to be “solely confined to humanitarian work”,Footnote 120 and thus handed down their sentences. However, the Court did take the humanitarian nature of their acts into consideration and recognized this to the extent that in “the interests of justice” they were released on recognizance release orders.Footnote 121 The Court's decision in this instance was borne not of a humanitarian exemption, as the UN Charter Act contains no such exemption, but rather from the Court's own discretion in sentencing. While this decision brings some relief to humanitarian organizations that operate in this context, it is less than ideal that humanitarian agencies must simply hope that, if prosecuted, a Court would come to the same determination.
Contractual obligations
In addition to limiting the scope and nature of permissible activities and beneficiaries, many States have imposed contractual obligations on humanitarian organizations working in complex environments. The contracts effectively require the organization and/or its partners to cooperate with counterterrorism efforts.Footnote 122 A recent study conducted by the Harvard Law School Counterterrorism and Humanitarian Engagement Project noted that some contracts go so far as to include statements adopting common counterterrorism postures by the donors and humanitarian organizations alike, noting for example that they are both “firmly committed to the international fight against terrorism”.Footnote 123 While these measures exist, in large part, to counter financing of terrorism, they place significant responsibilities on humanitarian actorsFootnote 124 and threaten the neutrality and independence of humanitarian agencies. One example of the types of requirements placed on NGOs is USAID's Partner Vetting System,Footnote 125 which requires “foreign assistance grant applicants to submit detailed personal information on leaders and staff of local partner charities to be shared with US intelligence agencies”.Footnote 126 This contractual requirement effectively turns humanitarian NGOs into intelligence gatherers,Footnote 127 in direct violation of the principles of neutrality and independence. What this means in practice is that humanitarian organizations are increasingly perceived as collectors of information for US intelligence agencies by those to whom they ought to be seen as neutral. There are concerns that this dynamic is severely hampering the efforts of humanitarian organizations to bring assistance to civilians residing in territory under the control of a DTO.Footnote 128 It is also interesting that nearly all of the humanitarian organizations which took part in the Counterterrorism and Humanitarian Engagement Project noted that they drew “a ‘red line’ at screening the ultimate beneficiaries”.Footnote 129
Australia has also incorporated counterterrorism measures into contractual agreements with humanitarian agencies. Further to the allegations described above, made by Shurat HaDin against World Vision Australia and AusAID,Footnote 130 allegations were also made against the broader Australia Middle East NGO Cooperation Agreement (AMENCA), which is a $35.4 million programme supporting Australia's overall contribution to the Palestinian Territories.Footnote 131 After the Australian government confirmed that the allegations were baseless, an independent review was conducted into the risk management mechanisms established in relation to counterterrorism, resulting in a number of observations surrounding the contractual obligations placed on Australian aid agencies in the humanitarian space.Footnote 132 For instance, the assessment ascertained that, by way of a general guide, the Department of Foreign Affairs and Trade (DFAT) expects all development partners to abide by minimum due diligence standards in order to fulfil their contractual obligations in accordance with counterterrorism requirementsFootnote 133 and to “use their ‘best endeavours’ to comply with Australian law”, and requires “that the other party inform DFAT immediately if, during the course of the agreement, any link whatsoever to a proscribed person or entity is discovered”.Footnote 134
The independent assessment also reviewed all agreements between the AMENCA NGO partners and those NGOs’ implementing partners, determining that each agreement included a clause committing the partner NGO to counterterrorism.Footnote 135 One agreement even makes reference to anti-terror laws of the partner's own country, the reach of UNSC Resolution 1373, and other international anti-terrorism conventions. In 2013, DFAT then introduced a series of contractual amendments, including a spot check system, designed to check up on the due diligence and financials of partner NGOs. This mechanism includes a system in which second-tier partners carry out regular checks of names of individuals and organizations against the DFAT Consolidated List.Footnote 136 This particular requirement could lead humanitarian organizations partnering with DFAT to be perceived as collecting intelligence information in direct contravention to the principles of neutrality and independence. In addition, these requirements could be jeopardizing the humanitarian principles by disallowing the distribution of aid and assistance when funding might potentially reach those on the consolidated list. Specifically, this threatens the provision of impartial humanitarian assistance.
It is noteworthy that not all States are requiring counterterrorism measures in grant and partnership contracts. While the United States, Canada, Australia and the UK have robust counterterrorism-related donor requirements, the contracts developed by other States, such as Denmark, Norway, Sweden and Switzerland, did not include any counterterrorism-related measures.Footnote 137 This raises questions as to the effectiveness of such contractual measures in the mitigation of terrorism risk and whether the deep compromise of humanitarian principles imposed by such contractual requirements results in measurable security gains.
The effects of legislation, sanctions and contracting on effective and principled provision of aid
Some of the global counterterrorism measures described above have had tangible negative impacts on the capacity of humanitarian NGOs to undertake principled humanitarian action.Footnote 138 Three particular effects will be discussed below.
The effect on access to persons and communities in need
First, these measures can affect how humanitarian actors are perceived and therefore their ability to gain access to communities in need. Humanitarian organizations may no longer be viewed as being able to provide neutral, impartial and independent assistance, and thus their very presence may be perceived as a threat,Footnote 139 not only to their fellow humanitarian organizations but also to the humanitarian principles themselves. Consequently, they may be refused access and permission to provide life-saving assistance. If humanitarian organizations, and through them the system itself, are perceived to be biased or unable to provide principled assistance in one context, it reflects on all humanitarian action and threatens the perception of the capacity of humanitarian actors in all contexts.
The effect on neutrality
A second challenge is the dependence many humanitarians have on their neutrality, for security.Footnote 140 When a humanitarian actor's neutrality is compromised, for whatever reason, the risk of being seen to be involved in the conflict is significantly increased. This in turn risks humanitarian workers being perceived either as “the enemy” or as working for “the enemy”. Trust is critical to gaining access to conflict-affected populations in need, and when trust is absent, it is very difficult for humanitarian actors to provide assistance. In the modern world, beset by social media, a perceived lack of neutrality in one country can affect how humanitarians are perceived elsewhere, thereby reducing the respect and protection afforded to aid workers everywhere. A recent study undertaken by the Feinstein Centre noted that “[n]eutrality and impartiality are not theoretical concepts or pie-in-the-sky constructs; they are essential ingredients for effective humanitarian action”.Footnote 141 The study found that in Iraq, “[n]eutrality … is regarded by communities and most remaining humanitarian organizations as an essential protection against targeted attack”.Footnote 142
The overall effect on principled humanitarian action
Third, it is not alarmist to say that if trust in the humanitarian system is lost, and humanitarian assistance is no longer perceived to be impartial, neutral, independent and based purely on the needs of humanity, then humanitarian organizations may lose their ability to work in complex humanitarian emergencies and in areas of armed conflict. Should this happen, the humanitarian consequences would be grave. Exemptions like those provided for in the Australian Criminal Code for humanitarian “association” with a terrorist organizationFootnote 143 will work towards strengthening the historic practice of principled humanitarian action. Unlike the United States’ limited “medicine and religious materials” exemption, in the Australian context, the laws seek somewhat to uphold the principles that humanitarian aid has always represented. The New Zealand exemption, as discussed earlier, goes well beyond that.
Indeed, some measures have effectively criminalized the capacity of humanitarian agencies to provide assistance on the basis of need alone, the core tenet of humanitarian action. In addition, contractual and other obligations between donors and humanitarian actors have served to institutionalize interdependence, thereby jeopardizing independent humanitarian action. The challenge for the future of effective humanitarian response, therefore, is to reconcile security concerns that require strong and robust counterterrorism measures with the humanitarian needs and concerns of civilian populations affected by the activity of DTOs and the legal and policy provisions that bind States and humanitarian actors alike, to allow for the provision of impartial humanitarian action.
In IHL, the idea that assisting people in the territory of the enemy may assist the enemy itself is dealt with by acknowledging the role of the State in withholding or suspending consent to provide humanitarian assistance based on security concerns.Footnote 144 The ICRC's Customary Law Study recognizes that the right to humanitarian assistance has entered into customary international law, and notes that the refusal to consent to the provision of humanitarian assistance must not be arbitrary.Footnote 145 However, while counterterrorism legislation acknowledges that not all contact with a DTO is necessarily prohibited, identification of whether such action could be used by the DTO to “free up other resources within the organisation that may be put to violent ends”Footnote 146 is a matter of concern for States and humanitarian organizations alike. In the Holder case, this theory – the “fungibility theory” – formed the basis of the rationale put forward in the Court's decision, wherein money is seen as fungible, and “when foreign terrorist organisations that have a dual structure raise funds, they highlight the civilian and humanitarian ends to which such moneys could be put”.Footnote 147 In practice, however, identifying where this may occur and the point at which action or inaction by humanitarian actors compromises humanitarian principles is enormously difficult.
Reflections on the way forward
How, then, is it possible to best ensure that human suffering is minimized, humanitarian assistance is provided consistent with the most basic precepts of humanity, and the tensions between counterterrorism measures and humanitarian action are addressed? In the first instance, it will be necessary for States to uphold their obligations under international law while enacting domestic counterterrorism legislation. In 2006, the UN General Assembly adopted the United Nations Global Counter-Terrorism Strategy.Footnote 148 While supporting and encouraging States to uphold their obligations to enact domestic legislation on counterterrorism in line with the demands of the UNSC, the resolution clearly calls on States to “ensure that any measures taken to combat terrorism comply with their obligations under international law, in particular human rights law, refugee law and international humanitarian law”.Footnote 149Inter alia, these legal obligations include a requirement to respect and ensure respect for the provisions of the Geneva Conventions, including those relating to the provision of humanitarian assistance and the impartiality and independence of humanitarian action.Footnote 150
Secondly, it will be necessary to encourage and implement improved humanitarian exemption clauses that enable and facilitate humanitarian action wherever the need is greatest. For example, in November 2013 the Humanitarian Assistance Facilitation Act (HAFA) was developed in the United States in recognition of the limitations on humanitarian action during the Somali famine. The bill recognized that “the prohibitions contained in … Executive orders and the Material Support Statutes discouraged and, in some instances, prohibited donors from contributing to aid efforts for all of Somalia”.Footnote 151 If passed, it is intended that HAFA would
permit persons subject to the jurisdiction of the United States to enter into transactions with certain sanctioned foreign persons that are customary, necessary, and incidental to the donation or provision of goods or services to prevent or alleviate the suffering of civilian populations and for other purposes.Footnote 152
On 18 November 2013, the bill was referred to the Committee on Foreign Affairs and the Committee on the Judiciary for an unspecified period of time.Footnote 153 The bill has wide support, in particular from American Red Cross and sixty-six international humanitarian NGOs including Mercy Corps, Oxfam America and World Vision, which noted that “[w]ith HAFA, we can focus on doing what we are called to do: helping people survive and overcome adversity, no matter where in the world they live”.Footnote 154 Yet, the fact that the proposed legislation has not progressed since 2013 may indicate that there is little appetite for exemptions for humanitarian organizations.
In Australia, although exemptions for humanitarian assistance do exist, as noted earlier, there are still severe limitations and the contractual requirements placed on humanitarian organizations continue to threaten their independence and their ability to provide impartial humanitarian assistance to those in greatest need.
Third, humanitarian organizations, the UN and States need to think about how they are able to address security concerns while continuing to provide principled humanitarian assistance, and they will need to work together to achieve the necessary balance. There is much work to be done, both by the humanitarian sector and by States, in order to better understand, support and develop modalities of operation which ensure that the needs of humanity and security are satisfied.
Finally, it has been suggested that “both customary international law … and international agreements, such as the Geneva Conventions and Protocols, should be read in light of these emerging international [counterterrorism] norms”.Footnote 155 However, if it is believed that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”,Footnote 156 then counterterrorism law should surely be written in light of customary international law.
The 50th anniversary of the Fundamental Principles of the International Red Cross and Red Crescent Movement and the 32nd International Conference of the Red Cross and Red Crescent in 2015, as well as the World Humanitarian Summit in 2016, present timely and unique opportunities to reaffirm the humanitarian principles and bring States, the UN and humanitarian bodies together to work through some of these complex and important issues. It is only if States, the UN and humanitarian agencies genuinely commit to addressing these threats to principled humanitarian action that these critical issues can be resolved. There is no doubt that security and counterterrorism are complex and important issues that must be addressed. However, to pursue counterterrorism measures without fully considering the humanitarian consequences and the capacity for humanitarian assistance to be provided in a timely, effective and principled fashion is to misjudge the critical balance between security and humanity. Adopting appropriate and considered legislation is essential to recovering this balance, ensuring that States are fulfilling their international legal obligations and ensuring that principled humanitarian assistance can continue to reach those most in need.
