Q&A;: Do counter-terrorism laws impair the "right of humanitarian initiative"?

Two things have to be clarified from the outset. Firstly, in order for IHL to be relevant the situation at hand must be one of an international (IAC) or non-international armed conflict (NIAC).

Let us proceed under the assumption that this condition is satisfied. The second clarification is that there is a common misconception that material support statutes (and I will focus on the US material support statute, to which the question refers) prohibit any and all engagement with a Designated Foreign Terrorist Organization (DFTO). That is not entirely accurate, although it has to be admitted that the wording of the Statute does not do much in favour of dispelling such fears.

So let’s take things step by step. The relevant Sections are §2339(A), §2339(B), §2339(C) and Executive Order 13224. These provisions do not criminalize any and all contact, but only material support or resources provided to a terrorist organization, so the “right of initiative” in principle remains intact. What may be restricted are the agreements that one can make and the range of activities that are allowed to be undertaken

Possible Safe Harbors

In more detail, these are some of the safe harbors of the material support statute, i.e. conduct which would not be criminal under the Statute:

1. Material Support
What the material support statute criminalizes is the provision of material support or resources. This means:

(1) the term “material support or resources” means 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;

(2) the term “training” means instruction or teaching designed to impart a specific skill, as opposed to general knowledge; and

(3) the term “expert advice or assistance” means advice or assistance derived from scientific, technical or other specialized knowledge.

Some safe harbors, are immediately evident e.g. provision of medicine or religious materials, imparting general knowledge, and advice or assistance which is not expert in nature.

Of course that is not a lot to go by. There are also a lot of problems determining what is to be considered as a specific skill vs. general knowledge, and whether medicine includes the provision of medical services ad hoc, or whether the latter falls under the prohibition of “expert assistance” (lower US courts have come to conflicting pronouncements on this).

2. Support to a DFTO
Another safe harbour, is the way the first sentence of §2339(B) is structured, providing material support to a foreign terrorist organization. The US Supreme Court in Holder v. Humanitarian Law Project read this as meaning conduct “directed to, coordinated with, or controlled by foreign terrorist groups”. So any conduct, that does not fall under this rubric, will not be criminal. Primary communication with a DFTO in order to gain access to areas in need of humanitarian aid/ relief would therefore not fall under this (if however, the DFTO asks for money in exchange for access, then any such agreement would fall under the Statute). Furthermore, if any activity involves both parties to the conflict, then that action is not directed, controlled, or coordinated with the DFTO. The same applies to workshops, or information sessions on IHL, as long as participants are not solely from one DFTO, so that their synthesis gives guarantees of impartiality and neutrality..

3. Approval by the Secretary of State
According to paragraph (j) of §2339(B), the Secretary of State can also give ad hoc approvals, for provision of material support or resources when these are connected to “personnel,” “training,” or “expert advice or assistance.”

Problematic Areas

Food, Water, Hygiene, Blankets etc.
One of the main problems is the vagueness (despite the fact that the US Supreme Court felt that the law, for purposes of constitutionality, was not vague) and the all-encompassing nature of the provided definition of material support. According to the definition, material support is “any property, tangible or intangible,” and the list provided after that is indicative and non-exhaustive (hence the term “including”). So, in principle despite not being mentioned on the list, provision of food, water, blankets etc. could fall under material support. Moreover, the exception in §2339(B) para. (j) refers only to the Secretary of State allowing for exceptions to “personnel,” “training,” or “expert advice or assistance,” but not to other forms of material support.

One way to address this uncertainty on the part of a humanitarian actor, (and this by no means is this a satisfactory solution, but rather a pragmatic one), would be to provide institutional guarantees or through its actual practice provide evidence of exercising due diligence in the provision of food, water, etc. In the sense that these will reach their intended recipients, i.e. the persons affected by the conflict, and will not be diverted by the DFTO, who may make use of the fungibility of the goods in order to procure other items or money to fund terrorist activities. This way, one can ensure that the material support is not to the DFTO. The US Department of State seemed to hint at this approach in 2011, with respect to the situation in the Horn of Africa, where areas of concern were controlled by al-Shabaab, a DFTO. The Department of State in an official statement clarified that “good-faith efforts [by humanitarian assistance organizations and workers] to deliver food to people in need will not risk prosecution.”

Holder v. Humanitarian Law Project
The US Supreme Court decision in Holder v. Humanitarian Law Project is also not very helpful, as it only dealt with a specific situation, and with the constitutionality of the statute only with respect to “training” and “expert advice or assistance.” Consequently, it did not go into any detail as to what should be considered as material support or not, and whether food, water etc., would and/ or should fall under that category.

Removal of Exception for Humanitarian Assistance
Originally, §2339(A) had an exception for humanitarian assistance, but when Congress enacted §2339(B) this exception was removed. This makes any claim that humanitarian assistance should be an exception to the statute essentially untenable (see Holder v. Humanitarian Law Project, p. 24). However, there have been recent efforts to try to re-introduce such an exception (see for instance here and here), as the current system, undeniably, puts a lot strain on the functioning of humanitarian actors.

Areas leading to uncertainty

Apart from the existence of certain safe harbors, there is a multitude of areas and activities which a humanitarian actor would likely find difficult to tell whether they would be criminal under the statute. Indicatively:

Conflict between the Material Support Statute and IHL obligations (GCs, AP and customary law)
With respect to the question of whether the US material support statute violates IHL, I will examine this only from the scope of international law. The domestic legal system of the US, being a dualist state, poses particular difficulties and is better left for a separate question on the matter.

Common Article 3(2) and Art. 9/9/9/10 of the Geneva Conventions
Common Article 3(2) and Art. 9/9/9/10 of the Geneva Conventions (the numbers refer to the articles in each of the four Geneva Conventions respectively) establish the “right of humanitarian initiative.” What is required is that the initiative is undertaken by an impartial humanitarian organization.

So does the US material support statute violate these provisions? Not on the face of it. Firstly, it does not prohibit the exercise of that right. What it does prohibit is specific arrangements. If such a case was brought before a court, one could easily envisage the lawyers in support of the statute making an argument to the effect that the provisions of the statute are actually a means of ensuring that the activity and thus the organization itself is indeed impartial. A counter-argument could be that in certain circumstances the statute would require the humanitarian organizations to distinguish between those in need (depending on whether they are members of a DFTO or not) and this would be a violation of their impartiality. The law itself does not seem to violate the right of initiative, but its actual application and/ or interpretation by the executive or the judiciary may end up having that effect. However, whether this is the case or not would have to be done based on the facts of each case.

An additional consideration is whether, despite the fact that the statute does not violate the right of initiative, the multitude of constraints that are put on the humanitarian organizations not only are against the object and purpose of the treaty but also essentially render that right of initiative devoid of any meaning or actual substance. This is indeed an argument that could be made with respect to the existing statute. However, once again, a court would probably not find that such a violation occurs by the law itself, but that any violation would have to be determined based on the actual application/ interpretation of the statute by the executive and judiciary.

Article 23 GC IV
Interesting is also to look at the provision of Article 23 GC IV:

Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.

The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing:

(a) that the consignments may be diverted from their destination,

(b) that the control may not be effective, or

(c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods.

The first paragraph seems to be reflected in the statute, with the exception on medicine and religious material. However, GC IV, also requires parties to allow free passage of foodstuffs, clothing, etc. to children under fifteen, expectant mothers and maternity cases. Such an exception is not in the statute. So could this perhaps be a violation? I am afraid that the answer is once again in the negative. The second paragraph clearly stipulates that this obligation is subject to the condition that the party is satisfied that this material will not be diverted, that the control is not effective or (note that these conditions are in the alternative, so not cumulative) that the adversary would accrue an advantage by utilizing the fungibility of this material, by selling it to acquire other products.

Essentially, these considerations were reflected in the adoption of the statute and Holder v. Humanitarian Law Project and it could be easily argued before the court that the measures put in place by the statute are a mere reflection of the conditions in Article 23 GC IV.

There are several additional provisions of the GCs and the APs that we could discuss both for international and non-international armed conflicts (for IACs: Article 70, 71 and 81 AP; for NIACs: 18 APII; for occupation: Articles 55 and 59 GC IV, and 69 API; finally customary rules as set out in the ICRC Study: Rules 31, 32, 55 and 56). But in order not to make this answer too too long, I would like to conclude that summing up, the US Material Support Statute, despite its serious deficiencies, does not seem to violate in and of itself the right of initiative or any of the related provisions of the GCs, APs or customary international law.

However, whether the interpretation/ application of the statute by the executive/ judiciary is in violation of those provisions is a completely different question. The statute already puts tremendous strain on the functioning of humanitarian organizations. Also the extremely low level of mens rea required – i.e. not intent, but mere knowledge of the designation of a group as FTO – makes matters even more difficult. The statute has quite a few areas that are vague and open to interpretation. If the interpretation/ application of the statute is too expansive (i.e. if the restrictions are interpreted in a way that covers more acts by humanitarian organizations) then a valid argument could be made that such an interpretation/ application would be in violation of the GCs, in the sense that it would go against their object and purpose and would render the right of initiative as well as the provisions relating to relief operations meaningless.

Increasing certainty

The main problem is the uncertainty that impartial humanitarian organizations face as to whether their acts fall under the statute or not. Unfortunately, there is no panacea to rectify this situation. The only thing that such actors can do is attempt to increase certainty and their own protection in two ways:

1. Actions relating to the statute
Actions and campaigns related to the statute could include:

• lobbying for a re-insertion of a humanitarian aid/ relief exception to the statute;
• further exceptions allowed to be approved by the Secretary of State
• guidelines, interpretative notes, clarifications by the administration as to the scope, interpretation, and application of the statute. These should be done in advance (ex ante) and not after (ex post) the emergence of a situation, as in the latter scenario critical time will be wasted.

2. Actions relating to own activities
As mentioned above the point is that any actions or agreements by humanitarian organizations must not end up providing material support to a DFTO. This was clarified by the US Supreme Court in Holder v. Humanitarian Law Project as meaning conduct “directed to, coordinated with, or controlled by foreign terrorist groups”. Towards this goal, things that, indicatively, may help could be:

• Institutional guarantees and mechanisms in the field to ensure that resources will not be diverted;
• When organising workshops or training sessions to disseminate information on IHL, the synthesis of the group of participants should be diverse (also the information should not be too specialised – IHL in general should be ok, but not training entirely devoted to targeting, etc.);
• Communication with both parties, as well as with other humanitarian organizations and/ or UN agencies, may also give further evidence of exercising due diligence;
• In all activities and agreements, exercising a heightened level of due diligence in order to avoid divergence of the material either directly or indirectly.

About the author
Panos Merkouris is Lecturer on Public International Law at the University of Groningen and a qualified lawyer (Athens Bar Association). He specializes in law of treaties, humanitarian law, and international environmental law.