Legal criteria exist for determining the existence of an armed conflict. If these criteria are met, IHL is applicable, regardless of the designation of organized armed groups as terrorist.
2.1 When does IHL apply to ‘terrorist’ violence?
IHL applies in situations of armed conflict, including occupation. The challenges identified in this research paper arise primarily in non-international armed conflicts, that is, situations of protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.
The purpose of classifying a situation as either armed conflict or another form of violence is to determine which law is applicable. Classification can be complex as a matter of law and fact. The mere fact that violence is carried out by groups labelled as ‘terrorist’ using ‘terrorist’ methods does not mean it should not be classified as an armed conflict, with the consequent application of the protections and restrictions laid down by IHL. The difficulty of determining whether violence labelled as ‘terrorism’ amounts to armed conflict is not a new issue. It has manifested itself in different ways over the decades.
States are frequently concerned that acknowledging the existence of an armed conflict may grant some status or recognition to the groups they are fighting. This is notwithstanding the express statement in the Geneva Conventions that the application of common Article 3 – the minimum rules of IHL that regulate non-international armed conflicts – do not affect the legal status of parties to the conflict.
States have taken varying approaches to classifying situations of ‘terrorist violence’ but this should not obscure the fact that legal criteria exist for determining the existence of an armed conflict, leading to the consequent application of IHL. If these criteria are met, IHL is applicable, regardless of any state rhetoric or formal designation of groups as terrorist. IHL may apply concurrently with international or domestic CT measures that may come into play as a result of such designation or otherwise.
2.2 The rules of IHL on humanitarian relief and medical assistance
There are two sets of rules of IHL that are of particular relevance to this paper: those regulating humanitarian relief operations, and those relating to medical assistance.
2.2.1 Rules regulating humanitarian relief operations2
Primary responsibility for meeting the needs of civilians lies with the party to the conflict in whose control they find themselves – state or organized armed group. If this party is unable or unwilling to meet these needs, offers may be made to carry out relief actions that are humanitarian and impartial in character. The consent of affected states is required, but may not be arbitrarily withheld. Once consent has been obtained, parties to the conflict and other relevant states must allow and facilitate the rapid and unimpeded passage of supplies, equipment and personnel involved in the relief operations. They may prescribe measures of control under which such passage is permitted.
The fact that civilians are under the control of a designated group is not a permissible ground for withholding consent to relief operations.
As far as the interplay between these rules and CT measures and sanctions is concerned, three key points can be drawn out. First, relief operations are for the benefit of civilians. The fact that civilians may be under the control of a group designated as terrorist or subject to sanctions does not affect these rules.
Second, and flowing from this, the fact that civilians are under the control of a designated group is not a permissible ground for withholding consent to relief operations.
Third, the risk that goods provided in the course of relief operations may be diverted to designated persons or groups can be addressed by means of the measures of control that parties to the conflict are entitled to adopt. These could include arrangements for their distribution.
The role of humanitarian organizations’ state of registration must be considered. Although it is not generally involved in such organizations’ operations, its entitlements and obligations can arise indirectly. Humanitarian organizations must comply with the CT measures and country-specific sanctions adopted by their state of registration. These measures could have the effect of preventing or restricting the organizations from conducting operations that have been consented to by the state in whose territory they will be conducted. This could be the case, for example, if states of registration preclude travel to areas under the control of designated groups, or if sanctions require them to issue licences for certain operations.
How can these situations be addressed? As will be discussed in this paper, CT measures and country-specific sanctions should be elaborated and, to the extent possible, interpreted and implemented in a manner that is consistent with IHL obligations. Restrictions that these measures impose must not amount to an arbitrary withholding of consent to relief obligations. Nor can states implement the measures in a manner inconsistent with their obligation to allow and facilitate relief operations. Further, measures of control adopted by states of registration must not be such as to prevent humanitarian operations from being conducted in accordance with humanitarian principles.
2.2.2 Rules on medical assistance
These rules consist of two interrelated elements: first, the entitlement of wounded and sick civilians and fighters who refrain from acts of hostility to receive, to the fullest extent practicable and with the least possible delay, the medical care required by their condition. In the provision of such care no distinction may be drawn on any grounds other than medical ones.
The second element is the prohibition on harming, prosecuting or otherwise punishing those who provide medical assistance, regardless of the nationality, religion, status or affiliation with a party to the conflict of the person receiving such care.
These are foundational rules of IHL. CT measures or country-specific sanctions that would preclude or punish the provision of such medical assistance, including on the grounds that people receiving the care are designated as terrorist or under such sanctions, would come into direct conflict with IHL. Equally problematic are more general restrictions that could, for example, prevent travel by staff of humanitarian organizations to provide such assistance. As in the case of relief operations, CT measures and sanctions must be framed so as to avoid conflict with IHL.
The states negotiating the Additional Protocols to the Geneva Conventions considered it necessary to include an express prohibition on prosecuting those who provide medical assistance, in view of problematic practices in conflicts. The absence of a similar express prohibition in the general rules on relief operations should not be interpreted as indicating that states may prosecute staff of humanitarian organizations that have conducted their operations in accordance with IHL, including the technical arrangements imposed by relevant parties.
2.3 The relationship between CT measures, country-specific sanctions and IHL
States have adopted a range of measures globally, regionally and domestically to prevent and punish acts of terrorism. Legal restrictions take two principal forms: the criminalization of certain acts, and the imposition of sanctions on groups or persons designated as terrorist.
At the international level, criminalization was traditionally effected by conventions requiring parties to criminalize particular manifestations of terrorism, such as threats to civil aviation or maritime navigation, terrorist bombings, and the financing of terrorism, and to prosecute or extradite persons suspected of such acts.
In these conventions the interplay between IHL and CT measures was considered principally in relation to acts of violence. One concern has been that acts of members of organized armed groups that comply with the rules of IHL on conduct of hostilities – such as attacks against government military facilities – could fall within the scope of the offences in the CT conventions. This would oblige all states parties to the conventions to prosecute or extradite persons accused of acts that were lawful under IHL. To avoid this, some states and humanitarian actors contributing to the negotiations of the conventions have sought to include clauses to exclude activities that are not unlawful under IHL from the scope of the offences.
Since 2001, the UN Security Council has assumed a key role in the international community’s CT response. The Council had addressed international terrorism before this, but it had done so in response to specific acts of terrorism, usually by condemning particular attacks, and, most significantly, establishing a sanctions regime focusing on one terrorist group: ISIL (Daesh)/Al-Qaeda.
With Security Council Resolution (SCR) 1373 (2001), the Council started addressing CT as a thematic issue across contexts. SCR 1373 was the first in a series of resolutions – for the most part adopted under Chapter VII of the UN Charter, and thus binding on all UN member states – that require states to take a broad range of measures to prevent and suppress terrorist activities. These include criminalizing as terrorist various modes of support to terrorism beyond those addressed in the conventions. As part of this framework, the Council has also established a complex institutional architecture for elaborating and coordinating the UN and member states’ CT response.
A key strand of the international community’s response to terrorism is stemming the flow of funds to groups designated as terrorist. In addition to criminalizing the provision of funds or assets for the commission of acts of terrorism, this has been achieved by the imposition of financial sanctions – by the Security Council, the EU and states unilaterally – on groups or persons designated as terrorist. These measures prohibit making funds or other assets available directly or indirectly to such groups and persons.
Most of these CT measures apply in armed conflict, as well as in times of peace. In view of this, and because of the broad scope of activities that are now prohibited and criminalized, there is a real risk that these measures may criminalize or otherwise adversely impact acts and activities that are foreseen and regulated by IHL, including, most notably, the conduct of humanitarian relief operations, and the provision of medical care. Unless there are adequate safeguards, terrorist financing crimes and prohibitions in sanctions on making funds or other assets available directly or indirectly to designated groups could capture incidental payments made in the course of humanitarian operations, and relief consignments that are diverted and end up in the hands of designated groups.
The cascading effects of the CT measures and sanctions are also problematic. To comply with these measures, states have included restrictions in funding agreements to ensure funds or assets do not reach or benefit terrorist groups. At times these are more onerous than the measures with which they aim to promote compliance, or they impede a principled humanitarian response.
Commercial actors such as banks, insurers, freight companies and providers of commodities that play a role in humanitarian operations must also comply with CT measures and country-specific sanctions. Fears of violating these measures, coupled with the reality that humanitarian organizations are rarely profitable clients, have led the commercial entities to restrict the services they provide. These restrictions have been so severe as to threaten humanitarian actors’ capacity to operate in areas perceived as ‘high-risk’.
