Painting Within the Lines: The UN’s Newest Resolution Criminalizing Financing for Terrorists—Without Imperiling Humanitarian Activities

On Thursday, the United Nations Security Council adopted Resolution 2462 in an effort to counter the financing of terrorism while avoiding unintended consequences for humanitarian activities in areas under the control of terrorist groups. Acting under Chapter VII of the UN Charter and reaffirming that acts of terrorism are a threat to international peace and security, the Security Council made a legally binding decision requiring all States to criminalize financial transactions carried out with the intention or knowledge that they are to be used for the benefit of terrorist organizations or individuals. This resolution reinforces a long sequence of UN Security Council resolutions to combat terrorism and its financing. The first of these was resolution 1373, adopted after the attacks on September 11, 2001. While such measures aim to help States collectively respond to the threat of terrorism, they can also unintentionally criminalize impartial humanitarian activities for people affected by armed conflict. (They also have an impact on the protection of fundamental rights and liberties, discussed elsewhere.) This type of counterterrorism measure is not new, and its negative impact on humanitarian action is now well documented. This is why a number of governments and humanitarian organizations pushed for Thursday’s resolution to incorporate safeguards for humanitarian activities as foreseen by international humanitarian law (IHL).

After some challenging negotiations on this particular aspect of the resolution (a short summary of negotiations is available here), the resulting safeguards reflect an effort to find a balance between prohibiting the channeling of funds to terrorists in the course of legitimate activities and addressing the real risk to humanitarian activities. The result reads as follows:

[Preamble] “Reaffirming that Member States must ensure that any measures taken to counter terrorism comply with all their obligations under international law, in particular international human rights law, international refugee law, and international humanitarian law

[Operative paragraph 5] Decides that all States shall, in a manner consistent with their obligations under international law, including international humanitarian law, international human rights law and international refugee law, ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense the wilful provision or collection of funds, financial assets or economic resources or financial or other related services, directly or indirectly, with the intention that the funds should be used, or in the knowledge that they are to be used for the benefit of terrorist organizations or individual terrorists for any purpose, including but not limited to recruitment, training, or travel, even in the absence of a link to a specific terrorist act;

[Operative paragraph 6] Demands that Member States ensure that all measures taken to counter terrorism, including measures taken to counter the financing of terrorism as provided for in this resolution, comply with their obligations under international law, including international humanitarian law, international human rights law and international refugee law;

[…]

[Operative paragraph 24] Urges States, when designing and applying measures to counter the financing of terrorism, to take into account the potential effect of those measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law;

International humanitarian law obligations relating to humanitarian activities

In situations of armed conflict, it is common for impartial humanitarian activities to be carried out for the benefit of persons who are not or no longer fighting and are members of, or in areas under the control of, non-state armed groups that governments, regional organizations or the UN have designated as terrorist (such as Hamas or Al-Shabaab). IHL explicitly recognizes that impartial humanitarian organizations may offer their services to parties to armed conflict, whether States or non-State armed groups (regardless of their designation as terrorist), with a view to safeguarding the life and dignity of persons affected by the conflict. Such humanitarian services can include assistance activities to provide food and medicine, repair systems for water supply and treatment, build medical facilities, and clear mines and unexploded ordnance. Humanitarian protection activities, such as visits to persons deprived of their liberty, aim to ensure that parties to conflict respect their obligations under IHL. Humanitarian activities may, at times, entail incidental payments, such as tolls, taxes, permit and other fees, to armed groups who have control over the territory where the activities are carried out or pass through.

Under IHL, military and civilian medical personnel and facilities are considered to bear humanitarian duties. They, and wounded and sick patients in their care, also receive humanitarian protections. IHL entitles all wounded and sick persons, whether civilians or fighters, to receive medical treatment and care, without any distinction except on medical grounds. IHL prohibits 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. Parties to conflict must respect and protect medical personnel, facilities and transports exclusively assigned to medical duties. It is also prohibited to attack fighters who have been incapacitated by wounds or sickness, provided they abstain from any hostile act and do not attempt to escape.

While governments may worry that impartial humanitarian services support or legitimize an enemy that has been designated as terrorist, from a legal perspective the provision of such services is not considered as interference in the conflict, an unfriendly act, recognition of, or support to, a party under IHL. Requiring that States’ counterterrorism measures comply with obligations under IHL therefore entails that these measures should not impede humanitarian activities. During the Security Council open debate held Thursday on the occasion of the resolution’s adoption, a number of States – Belgium, Brazil, Dominican Republic, Equatorial Guinea, France, Germany, Ireland, Italy, Lichtenstein, the Netherlands, Peru, Poland, Slovenia, South Africa, Switzerland, the UK, the US – remarked on the importance of humanitarian  activities.

The impact of counterterrorism measures on humanitarian activities

Despite the clarity of IHL, counterterrorism measures prohibiting and criminalizing the financing of terrorists can have a worrisome impact on humanitarian activities. For instance, incidental fees that humanitarian organizations may need to pay armed groups in order to reach people in need might be considered to fall within the transactions set out in paragraph 5 of Resolution 2462 (or similarly worded provisions in other instruments). In such a case the payment of such fees could be subject to criminal prosecution.

Counterterrorism measures aimed at prohibiting and criminalizing financial transactions can also have broader unintended consequences for humanitarian activities. As explained in a recent report by the Overseas Development Institute, “[t]he (unclear) implications of these regulations for the transfer of humanitarian funds into areas deemed to be high-risk – both for banks and for humanitarian organizations – have led to heightened due diligence requirements from donors and banks, extensive and invasive security checks for local partners and implementing actors, restrictions on staff travel and greater government scrutiny of the staff of national and regional aid organizations. … Banks have become increasingly wary in their dealings with humanitarian organizations; accounts have been closed, and transactions delayed or blocked.”

Beyond the regulation of financial transactions, broadly worded counterterrorism measures (such as those found in Resolution 1373 (2001)) that generally prohibit support or services to individuals or entities involved in terrorist acts can potentially criminalize activities of humanitarian organizations that involve engaging with such persons or entities. As the International Committee of the Red Cross (ICRC) has explained, such activities can include “visits and material assistance to detainees suspected of or condemned for being members of a terrorist organization; facilitation of family visits to such detainees; first aid training; war surgery seminars; IHL dissemination to members of armed opposition groups included in terrorist lists; assistance to provide for the basic needs of the civilian population in areas controlled by armed groups associated with terrorism; and large-scale assistance activities to internally displaced persons, where individuals associated with terrorism may be among the beneficiaries.”

Such broadly worded counterterrorism prohibitions can also lead donor governments to impose funding conditions that limit or impede the impartial humanitarian activities listed above. A number of reports (see for example a report by the Harvard Law School Program on International Law and Armed Conflict, one by Chatham House, and another by the International Peace Institute) have described a range of unintended negative effects that counterterrorism measures can have on humanitarian activities, such as a “chilling effect” that results in avoiding engagement with certain armed groups in order to limit exposure to criminal liability.

Some countries’ counterterrorism legislation can also consider the provision of medical services to designated individuals or groups as a form of support to terrorism and thus a criminal offense, even though IHL protects medical activities. As Médecins Sans Frontières (Doctors Without Borders) has explained, “It is indeed at the intersection of IHL and domestic criminal and counterterrorism laws that we are encountering the greatest difficulty in securing the neutrality and safety of the medical mission, and the protection of our staff and patients.” A report published last year revealed that of 16 countries surveyed, “practices in at least 10 countries appear to suggest that the authorities interpret support to terrorism to include the provision of healthcare.” While the criminalization of healthcare is not new, the report adds that “the counter-terrorism framework has purportedly strengthened the legal and moral basis to justify such actions.” For instance, under Iraqi national law on combating terrorism, charges have been brought against doctors working in hospitals under ISIS-held territories. In the U.S., a medical doctor who had volunteered as a medic in the al Qaeda military structure to treat injured fighters was convicted of conspiring to provide, and providing or attempting to provide, material support under the direction or control of a terrorist organization.

Safeguards

In light of the real risk that counter-terrorism measures can impede humanitarian and medical activities in armed conflict, UN and regional instruments, as well as national legislation, have incorporated specific safeguards for these activities as foreseen under IHL. The range of safeguards includes explicit exemptions or exceptions for humanitarian activities; requirements that counterterrorism measures do not impede such activities; emphasizing that counterterrorism measures must comply with obligations under international law, including IHL; and requiring States to take into account the potential effect of counterterrorism measures on humanitarian activities (as seen in Thursday’s Resolution 2462). Some of these safeguards are set out below.

– Following a concerted push from humanitarian organizations, the UN Security Council adopted the following exemption when it renewed sanctions against Al-Shabaab in 2010:

[Operative paragraph 48] Decides that until 15 November 2019 and without prejudice to humanitarian assistance programmes conducted elsewhere, the measures imposed by paragraph 3 of resolution 1844 (2008) shall not apply to the payment of funds, other financial assets or economic resources necessary to ensure the timely delivery of urgently needed humanitarian assistance in Somalia, by the United Nations, its specialised agencies or programmes, humanitarian organisations having observer status with the United Nations General Assembly that provide humanitarian assistance, and their implementing partners including bilaterally or multilaterally funded non-governmental organisations participating in the United Nations Humanitarian Response Plan for Somalia

– The 2017 EU Directive on Combating Terrorism states in its preamble that:

[t]he provision of humanitarian activities by impartial humanitarian organisations recognised by international law, including international humanitarian law, do not fall within the scope of this Directive, while taking into account the case-law of the Court of Justice of the European Union.

– On the domestic front, New Zealand’s Terrorism Suppression Act states:

(1) A person commits an offence who makes available, or causes to be made available, directly or indirectly, without lawful justification or reasonable excuse, any property, or any financial or related services, either to, or for the benefit of, an entity, knowing that the entity is a designated terrorist entity.

[…]

(3) An example of making property available with a reasonable excuse, for the purposes of subsection (1), is where the property (for example, items of food, clothing, or medicine) is made available in an act that does no more than satisfy essential human needs of (or of a dependant of) an individual designated under this Act.

– In Canada, the Criminal Code states that terrorist activity:

for greater certainty, 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.

– Short of excluding the application of counterterrorism measures to humanitarian activities, the UN General Assembly, in reaffirming the 2006 UN Global Counter-Terrorism Strategy:

22. Urges States to ensure, in accordance with their obligations under international law and national regulations, and whenever international humanitarian law is applicable, that counter-terrorism legislation and measures do not impede humanitarian and medical activities or engagement with all relevant actors as foreseen by international humanitarian law;

While the safeguards in Thursday’s resolution are not as explicit as the above examples, it is hoped that the UN Security Council’s language – including its legally binding decision that States shall establish criminal offenses “in a manner consistent with” IHL,  the demand that States ensure that their counterterrorism measures “comply with” IHL, and the urging that States “take into account the potential effect” of measures to counter the financing of terrorism on exclusively humanitarian activities — will ensure that such activities are safeguarded and not impeded. That third requirement is a new addition to the repertoire of safeguards and should serve to steer how measures to counter the financing of terrorism – in this resolution and in other instruments – are designed and applied.

* * *

The type of measures adopted in Resolution 2462 are not new. Neither is their impact on impartial humanitarian activities. In implementing this resolution and other counterterrorism measures, States must ensure that they do not impede humanitarian activities as envisioned by IHL. This will require ensuring that counterterrorism measures, which are becoming increasingly detailed and prescriptive, are accompanied by equally strong safeguards for impartial humanitarian activities. It will also require a concerted and enduring effort to increase States’ understanding of the tension between counterterrorism measures and humanitarian activities. Without safeguards in place, humanitarian activities are hampered and, as the ICRC has said with regard to its own work, counter-terrorism measures can negatively impact its ability to carry out its mandate. The organization explained, “As a consequence, people suffer at the very moment when IHL should protect them.” The number of States that expressed sensitivity to this issue in Thursday’s open debate is one encouraging step.

 

This piece has been written in a personal capacity. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.

Photo: STRINGER/AFP/Getty Images

 

About the Author(s)

Nathalie Weizmann*

Senior Legal Officer with the United Nations Office for the Coordination of Humanitarian Affairs. Member of the editorial board of Just Security. You can follow her on Twitter (@nweizmann).