Introduction
After the 9/11 attacks against the United States, the United Nations Security Council (UNSC) significantly contributed to transnational criminal lawFootnote 1 by requiring the domestic criminalization of “terrorism” acts and ancillary activities.Footnote 2 It also listed several non-State armed groups (NSAGs) involved in terrorist activities, including Al-Qaeda, the Islamic State of Iraq and the Levant (ISIL, also known as Da'esh) in Syria and Iraq, and Boko Haram in the Sahel,Footnote 3 through the 1267 sanctions regime.Footnote 4 Researchers and practitioners,Footnote 5 including the International Committee of the Red Cross (ICRC),Footnote 6 have warned that these decisions have created some overlap and contradictions between the laws governing counterterrorism measuresFootnote 7 and international humanitarian law (IHL).
IHL regulates situations of international and non-international armed conflict. The existence of armed conflicts is established based on a factual assessmentFootnote 8 and regardless of the political designation of “terrorist” of one of the parties to the conflict or of its activities. Further, while IHL takes a two-pronged approach in regulating both lawful and unlawful conducts in armed conflicts, terrorism is always regarded as criminal.Footnote 9 There is therefore an apparent tension between IHL and counterterrorism, which can be highlighted both at the policy level (in analyzing UNSC resolutions) and in practice (in looking at criminal proceedings in domestic courts). Examining the issue from both of these perspectives, this paper aims to assess the impact of UNSC counterterrorism resolutions on the use of and respect for IHL in national criminal proceedings.
The paper begins with an overview of the development of the UNSC response to terrorism since 2001 and the offences it has required States to criminalize. It analyzes how the UNSC has created conflicting obligations on States, and discusses the judicial and political implications of these conflicts. The first section concludes that the UNSC has left it up to States to define the interaction between the two frameworks and has opened the door to various practices and interpretations at the domestic level.Footnote 10 Secondly, the paper surveys State practices in the adjudication of offences regulated by both IHL and national counterterrorism legislation. It observes that individuals whose conduct is governed by both IHL and counterterrorism law have been charged and indicted for terrorist offences, regardless of the legality or illegality of their activities in situations of armed conflict. To remediate this development, the paper highlights two good practices – first, the adoption of an IHL exclusion clause and a sectoral humanitarian exemption in domestic legislation, and second, the use of dual legal qualification in domestic courts. The paper ends with a call for action to national authorities and the UN system to ensure better consideration for IHL in States’ domestic criminal justice processes and to shape customary international law in a manner that is consistent with IHL.
The UNSC's response to terrorism and its implications for IHL
Historical development
Since 2001, the UNSC has tackled terrorism as a threat to international peace and security and has adopted more than twenty binding counterterrorism resolutions under Chapter VII of the UN Charter.Footnote 11 These resolutions have expanded the sanctions regime against listed individuals and entities associated with the Taliban, Al-Qaeda and ISIL.Footnote 12 Further, in adopting Resolutions 1373,Footnote 13 2178,Footnote 14 2396Footnote 15 and 2462,Footnote 16 the UNSC has taken a quasi-law-making roleFootnote 17 and has imposed legal obligations on United Nations (UN) member States. These legal obligations “relate to [States’] general legal frameworks, including codification of the international counterterrorism instruments, denial of safe haven, recruitment, jurisdiction, bringing terrorists to justice, and international legal cooperation”.Footnote 18 The aforementioned resolutions outline, inter alia, a series of “terrorist” and ancillary acts to be established “as serious criminal offences in domestic law and regulations”Footnote 19 so as to respond to emerging and evolving threats. With Resolution 1373, the UNSC required member States to criminalize
the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts.Footnote 20
Resolution 1373 also calls on States to
[e]nsure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations.Footnote 21
In 2014, as thousands of foreign fighters had travelled to join the self-proclaimed Islamic State (IS) in Iraq and Syria, the UNSC adopted Resolution 2178 to address this trend. The resolution requests States to establish relevant criminal offences to prosecute and penalizeFootnote 22 nationals and individuals who “travel or attempt to travel to a State other than their States of residence or nationality, for the purpose of perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training”.Footnote 23 In 2017, as IS faced a military defeat and lost territories, fears grew regarding the return or relocation of foreign fighters, which paved the way for the adoption of UNSC Resolution 2396.Footnote 24 This resolution put emphasis on judicial measures, including prosecution, as well as reintegration and rehabilitation of returning individuals and their families.Footnote 25 Finally, in 2019, Resolution 2462 was adopted as a consolidated text on countering the financing of terrorism.Footnote 26 It reaffirms the provisions contained in previous resolutions on establishing criminal offences against the direct and indirect financing of terrorism as well as against “the travel, recruitment and financing of foreign terrorist fighters”.Footnote 27 It further requests States to establish serious criminal offences for the “wilful provision or collection of funds, financial assets or economic resources or financial or other related services … to be used for the benefit of terrorist organizations or individual terrorists for any purpose”.Footnote 28 The UNSC also established the Counter-Terrorism Committee (CTC)Footnote 29 and the Counter-Terrorism Committee Executive Directorate (CTED)Footnote 30 to monitor the implementation of these binding resolutions and to develop technical recommendations and guiding principles to facilitate their transposition at the national level.Footnote 31
Conflation with IHL and implications
In adopting these Chapter VII resolutions on counterterrorism and expanding criminal liability for “terrorism”, the UNSC has created a potential overlap with obligations under IHL. This is due to four main reasons: (1) the UNSC has requested the criminalization of broad “support” and “indirect financing” of terrorism; (2) the UNSC has not legally defined the constitutive elements of terrorist offenses; (3) the UNSC has extended application of these offenses to situations of armed conflict and designated certain NSAGs as terrorists; and (4) the UNSC has adopted these resolutions without providing any explicit IHL exclusion clause or a sectoral humanitarian exemption.Footnote 32 These decisions can thus have important judicial repercussions for protected individuals in situations of armed conflict, including impartial humanitarian actors.
First, as noted above, the UNSC has called on all States to criminalize a number of acts and to incorporate these into their domestic laws and regulations as prosecutable offences. It has thus expanded the scope and types of “terrorist” activities, particularly ancillary activities, which it requires States to repress under domestic law. Amongst others, the provision of “any form of support, active or passive, to entities or persons involved in terrorist acts”Footnote 33 is prohibited, and the “wilful provision or collection of funds, financial assets or economic resources or financial or other related services”Footnote 34 as well as “support” to terrorism is to be punishable by law.Footnote 35 However, when “support”, “economic resources” or “other related services” are broadly interpreted, impartial humanitarian bodiesFootnote 36 may be suspected of such offences when providing humanitarian assistance to listed individuals, or in cases of incidental transactions, or of payments of taxation for humanitarian access to listed groups. Such allegations would run directly counter to the principles underpinning impartial humanitarian activities.
Second, the UNSC has not settled the contentious debates surrounding the definition of terrorism, nor has it circumscribed its definitions to specific constitutive elements of crimes with the adoption of a binding resolution.Footnote 37 Instead, the UNSC requires States to criminalize the “perpetration of terrorist acts” without delineating the material elements which would amount to such acts. In effect, the Council has endowed the terms “terrorism” and “terrorist acts” with operative legal meaning without defining or delineating the constitutive elements of these crimes.Footnote 38 This has allowed for a broad interpretation of these crimes, which can be in tension with rules under IHL. For instance, in an armed conflict, an act of violence committed by a designated “terrorist” NSAG against an opposing State's armed forces which constitute a military target would not be illegal under IHL if the act respected the principles of distinction, proportionality and precaution, along with all other applicable rules of IHL.Footnote 39 If any act of violence committed by the terrorist group is regarded as “terrorist” and is thus automatically considered to be reprehensible, it may suggest “that merely participating in hostilities as a member of a NSAG constitutes a terrorist offence”.Footnote 40 This rationale is problematic, as it would likely deter armed groups from respecting IHL in their conduct of hostilities.Footnote 41 Indeed, if charges of terrorism can be expected regardless of tactical choices in an armed conflict, there may be no reason to limit one's targets and conduct to lawful ones.
Third, the UNSC has extended the application of these terrorist offenses to situations of armed conflict and has designated certain NSAGs as terrorists, which can further create overlaps with obligations under IHL. In particular, direct references to “armed conflict” in Resolutions 2178 and 2396 pertaining to the definition of “foreign terrorist fighters”Footnote 42 may allow States to interpret these provisions in a way that could extend and criminalize related terrorist offences in situations of armed conflict.Footnote 43 The UNSC resolutions clearly require States to prosecute such offences, which would not be contrary to IHL as it is States’ prerogative to prosecute members of NSAGs for their participation in hostilities and actions undertaken in non-international armed conflicts (NIACs), regardless of their lawfulness under IHL.Footnote 44 However, this development at the UNSC can create confusion at the domestic level – including in domestic criminal proceedings – with regard to the applicability of IHL in these cases.Footnote 45
On one end of the spectrum, the requirement for States to prosecute “foreign terrorist fighters” may inhibit certain rules foreseen by customary law in NIACs, including the granting of amnesty at the end of hostilities to those who have participated in the armed conflict without committing any serious violations.Footnote 46 On the other end of the spectrum, the broad terrorist offences related to “foreign terrorist fighters”Footnote 47 in a situation of NIAC may end up encompassing serious violations of the laws and customs of war applicable in NIACs and war crimes under the Rome Statute of the International Criminal Court. While the UNSC compels States to prosecute terrorist offences, the Geneva Conventions have done so regarding war crimes for seven decades. There are a few arguments for the position that prosecuting an individual for “terrorism” when war crimes have been committed poses both legal and political issues. First, legally, this approach may be inconsistent with IHL and international customary law as there is an obligation on States to investigate and prosecute war crimes, which are considered among the most serious international crimes (along with genocide and crimes against humanity).Footnote 48 Absent such investigations and prosecutions, this could sustain the lack of accountability over violations of IHL committed in armed conflicts, including but not limited to Syria, Yemen and Libya. Second, this approach may encourage judges to disregard the legal framework established by the Geneva Conventions to assess conducts in armed conflict, which could lead to a loss of IHL relevancy in national courts. Further, as the criminal responsibility of perpetrators is not fully accounted for and assessed under the relevant legal regimes, this approach is not victim-centred. It does not properly render justice to the victims and survivors of serious international crimes, whose plight is left unaddressed and for which a sense of impunity could perdure.Footnote 49 A lack of accountability for the most serious international crimes may jeopardize transitional justice and future reconciliation processes,Footnote 50 particularly in post-conflict countries such as Iraq, Mali and the Philippines, where national authorities are seeking to reconstruct society and build trust across communities.Footnote 51
It is important to note that while these developments at the UNSC can create confusion regarding the applicability of IHL at the domestic level – including in domestic criminal proceedings, as noted above – UNSC Resolution 2396 actually “urges member states to develop and implement appropriate investigative and prosecutorial strategies … in accordance with domestic and applicable international human rights law and international humanitarian law”.Footnote 52 IHL should thus be taken into consideration in strategies for prosecuting “foreign terrorist fighters” and other individuals for terrorist-related offences, when relevant.
Finally, and most critically, the UNSC has not included any explicit IHL exclusion clause or sectoral humanitarian exemptionFootnote 53 in requiring the criminalization of these terrorist acts and ancillary activities. Since 2004Footnote 54 it has mentioned, mostly in preambular paragraphs, that counterterrorism measures should be adopted in accordance with international law, including human rights, refugee and humanitarian law, but it has not provided guidance or directed States towards adopting a clear exception.Footnote 55 Council members have only recently made an attempt to reclaim some of the space for IHL, particularly regarding humanitarian activities, in adopting relevant provisions under the Chapter VII UNSC Resolution 2462. This resolution calls, in operative paragraph 5, for domestic law and regulations to be “consistent with obligations under international law, including humanitarian law”, and in operative paragraph 6 “[d]emands that Member States ensure that all measures taken to counter terrorism … comply with their obligations under international law, including international humanitarian law”. This is the first time that such language demanding compliance in all measures for countering terrorism has been featured in operative paragraphs of a counterterrorism resolution.Footnote 56 Further, operative paragraph 24 of the same resolution
[u]rges 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.Footnote 57
Despite being an achievement, this language reflects a compromise.Footnote 58 Urging States to “take into account” the effect of counterterrorism measures on humanitarian activities does not constrain them to interpret this provision as a sectoral humanitarian exemption.Footnote 59 Instead, how to implement this paragraph and to “take into account the potential effects” remain subject to States’ own interpretations, which vary considerably.Footnote 60 While some States, like SwitzerlandFootnote 61 and the Philippines,Footnote 62 have introduced a humanitarian exception in their legislation dealing with terrorist activities, others have established multi-stakeholder dialogues “that bring together relevant government agencies with representatives of the non-profit sector to discuss issues relating to humanitarian activities in high-risk jurisdictions”.Footnote 63 Overall, however, “only a few States have developed a specific response to the potential impact of the counter-financing of terrorism on exclusively humanitarian activities”.Footnote 64 While the inclusion of operative paragraph 24 should open the way for more States to “take into account the effect of” countering financing of terrorism measures on humanitarian action, its implementation will continue to vary across States. CTED reiterates in its latest documents the need for States to comply with IHL obligations, in furtherance of relevant UNSC resolutions,Footnote 65 but it does not suggest any specific ways in which States can do so domestically; instead, it recognizes that States have different legal approaches, have “differing understandings with respect to the incorporation of … international humanitarian law standards into domestic law”Footnote 66 and are bound by different legal frameworks, including regional ones, which vary across jurisdictions.Footnote 67 While some UN member States recognize the need for humanitarian action to be safeguarded in the fight against terrorism,Footnote 68 the UNSC has remained divided over this issue, and this has so far prevented the adoption of an explicit and legally binding safeguard.Footnote 69
In requesting the criminalization of broad terrorist offences without an IHL or humanitarian exception, the UNSC has created a potential clash with obligations under IHL, which may bear judicial repercussions for individuals in situations of armed conflict. In failing to harmonize these two frameworks, the Council has de facto left it up to States to define the interaction between the two frameworks. In the next section, this paper will thus focus on domestic cases in order to survey how national courts deal with legal and illegal activities under IHL when these also fall under the scope of counterterrorism legal frameworks.
Domestication of UNSC terrorist-related offences and prosecution of terrorist acts in relation to armed conflicts in national courts
With some guidance by CTED – as a member of the Global Counter-Terrorism Coordination CompactFootnote 70 – States have transposed UNSC resolutions and criminalized the offences according to their own interpretations, obligations and legal traditions.Footnote 71 More than 140 countries have adopted counterterrorism laws since 2001 to comply with UNSC Resolution 1373,Footnote 72 and at least fifty others have enacted or amended domestic laws since 2015 to comply with UNSC Resolution 2178 on foreign terrorist fighters.Footnote 73 This is the case, for instance, with Australia, which has adopted the 2014 Foreign Fighters Act,Footnote 74 as well as Indonesia, which amended its Counterterrorism Law in 2018.Footnote 75 The domestication process of UNSC offences – particularly the most recent ones, such as those listed in Resolution 2462 – is ongoing. For instance, the Philippines adopted the Anti-Terrorist Act in July 2020, which includes a limited humanitarian exemptionFootnote 76 within the spirit of Resolution 2462, operative paragraph 24.Footnote 77 Given the various interpretations of the UNSC resolutions by States, the transposition of the required UNSC terrorist and ancillary offences has not aligned counterterrorism legislations around the world, or the ways in which national courts adjudicate over these, with regard to IHL.Footnote 78
This section undertakes an initial comparison of domestic case studies to survey how domestic courts have adjudicated over offences which fall under both IHL and counterterrorism legislation (influenced by UNSC resolutions). The section compiles observations about national courts’ mixed legal practices in prosecuting “terrorist” activities (according to domestic legislation) that have occurred in situations of armed conflict. Most defendants mentioned were operating on the side of NSAGs designated as “terrorist” during a NIAC. The section first surveys trials dealing with conduct that could amount to serious violations of the laws and customs of war applicable in NIAC and war crimes under the Rome Statute, and then focuses on activities that are not prohibited under IHL, namely humanitarian action and non-prohibited conducts in NIAC. The common point between the vast majority of these cases is that defendants have been charged and convicted for terrorism-related offences, regardless of the (il)legality of their conduct under IHL. In most cases, States have not sufficiently developed “prosecutorial strategies … in accordance with … international humanitarian law”.Footnote 79
Prosecuting terrorist acts that could amount to war crimes
There is an obligation for States to investigate and prosecute war crimes, which are considered to be among the most serious international crimes (alongside genocide and crimes against humanity).Footnote 80 UNSC Resolution 2396 also reaffirms that “those responsible for committing or otherwise responsible for terrorist acts, and violations of international humanitarian law or violations or abuses of human rights in this context, must be held accountable”.Footnote 81 When war crimes have allegedly been committed by members of NSAGs designated as terrorists in an armed conflict, State practice has been twofold: they have either used dual legal qualification to judge an individual under both domestic counterterrorism legislation and IHL, or they have charged the defendants solely for terrorist crimes (with no other incrimination). No cases were observed of individuals associated with designated terrorist groups who were only incriminated for war crimes.Footnote 82
Dual legal qualification
There has been a growing trend in Western Europe to assess the conduct of an individual and adjudicate it under both domestic counterterrorism legislation and IHL. Dual legal qualification has also been referred to as cumulative prosecution or cumulative charging.Footnote 83 This, however, is different from cumulative prosecution, defined as the double prosecution of the same act, which would pose rule of law issues, including with regard to the rules of double jeopardy and of fair trial procedure.Footnote 84 Bringing terrorism charges in addition to war crimes charges fulfils different functions: first of all, it ensures that the criminal responsibility of perpetrators is fully accounted for and assessed under the relevant legal regimes. As such, it also “delivers more justice to victims”,Footnote 85 and finally, it often results in higher sentences.Footnote 86
So far, only the national courts of some European Union (EU) member States have developed jurisprudence regarding dual legal qualification.Footnote 87 In Germany, for instance, war crimes are regarded as a manifestation of terrorism, which intrinsically implies the use of IHL and domestic criminal law in the same judgment.Footnote 88 In other jurisdictions, such as the Netherlands and France, dual legal qualification is possible provided that all relevant facts of the act are not exhaustively judged under one set of legislation.Footnote 89 Some examples of dual legal qualification include the cases in the Netherlands of Oussama A Footnote 90 and in Germany of Abdelkarim El B,Footnote 91 who were both convicted for the war crime of “humiliating and degrading treatment of a protected person”Footnote 92 and for membership of a terrorist organization. Another example is that of Abdul Jawad Al-Khalaf in Germany, who was convicted for the war crime of killing persons protected under IHLFootnote 93 and for membership of a terrorist organizationFootnote 94 More recently in France, an investigation was opened against Ahmed Hamdane El Aswadiin for war crimes and murder in connection with a terrorist enterprise.Footnote 95 Accompanying this trend of dual legal qualification is the merging of several specialized anti-terrorist prosecutorial entities with war crimes entities, including the Parquet National Antiterroriste in France (in 2019),Footnote 96 the Special Crime and Counter-Terrorism Division of the UK's Crown Prosecution Service (in 2016),Footnote 97 the Office of the German Federal Public Prosecutor in Germany,Footnote 98 and the Office of the Attorney-General of Switzerland.Footnote 99 Dual legal qualification is discussed as a good practice in the section below entitled “Good Practices at the Domestic Level”.
Terrorism charges only (even when conduct may amount to war crimes)
In certain cases, national courts have brought terrorist offence charges only, although the offences were apparently committed in a situation of armed conflict and could allegedly have amounted to serious violations of the laws and customs of war applicable in NIAC and war crimes under the Rome Statute. The absence of incrimination for war crimes may be due to a lack of jurisdiction, diverging legal interpretations and traditions of the courts, legal and judicial barriers (including lack of evidenceFootnote 100) or a lack of training of the judiciary in dealing with international crimes. For example, the lack of jurisdiction over war crimes in TurkeyFootnote 101 and IraqFootnote 102 has prevented courts in these countries from pressing charges of this nature. Consequently, one of the British jihadis who brutalized and beheaded several hostages in Syria, Aine Lesley David, was convicted in Turkey on terrorism charges,Footnote 103 and the vast majority of cases pertaining to ISIL in Syria and Iraq which have been prosecuted in Iraq have resulted in convictions for terrorism charges.Footnote 104 The legal tradition of some countries, such as France and the United States, has led to the indictment and conviction of individuals operating in situations of NIAC under terrorist-related offences.Footnote 105 In France, for instance, most foreign fighters have been convicted for “association of wrongdoers in relation to a terrorist enterprise”,Footnote 106 even in cases directly linked to the armed conflict in Syria and when serious violations of the laws and customs of war applicable in NIAC seem to have been committed. This is because the offence of “association of wrongdoers in relation to a terrorist enterprise” provides a high certainty of prosecutorial success (as “there is no requirement that the individual contributes materially to the commission of the terrorist act in itself, nor that the terrorist plan is executed. … [T]he mere participation in a group that has a plan to commit a terrorist act, with the knowledge that the group has a plan to commit such an act, is enough to qualify as a terrorism-related crime”Footnote 107) and can induce long penalties of over ten years.Footnote 108 In 2018, for instance, the French Court of Cassation convicted Mounir Diawara and Rodrigue Quenum on charges of “association of wrongdoers in relation to a terrorist enterprise”Footnote 109 although they “had appeared in photos in combat fatigues in Syria, Kalashnikov in hands, one of them brandishing a severed head”.Footnote 110 Note that in other European domestic courts, such a piece of evidence was used to charge defendants for war crimes (after the courts assessed that the act took place in a situation of armed conflict).Footnote 111 The trend may be changing in France, however, with the El-Aswadi case, which is the “first case to be investigated jointly by the anti-terrorism and the specialized unit [for the prosecution of genocide, crimes against humanity, war crimes and torture]”.Footnote 112 In the United States, where material support violation is the most common incrimination for foreign fighters,Footnote 113 no individual has been prosecuted and convicted under the War Crimes Act so far. For instance, Alexanda Kotey and El Shaffee Elsheikh – two high-profile ISIL members involved in the kidnapping and beheading of twenty-seven hostages, including four Americans, in Syria between 2012 and 2015 – were indicted for hostage-taking and terrorist-related crimes, but not for war crimes.Footnote 114 Other examples include Egypt, where international crimes have not been used in domestic courts and where detained individualsFootnote 115 associated with Wilayat Sinai (a branch of the Islamic State in Iraq and Syria (ISIS) in the Sinai Peninsula) have been tried and convicted for terrorist activities by military courts.Footnote 116 In Nigeria, between 2017 and 2018, more than 1,500 individuals were prosecuted for providing support to Boko Haram under the Terrorism Prevention Amendment Act.Footnote 117 In some cases, there is a concern that terrorism offences (particularly related to “support” and “participation”, which may be encapsulated in “membership”) have become catch-all offences which provide more certainty of prosecutorial success due to the often low threshold of burden of evidence needed to secure conviction.Footnote 118 These convictions may not reflect the full extent of the crimes committed, when those crimes could amount to serious violations of the laws and customs of war applicable in NIAC and war crimes under the Rome Statute.
Prosecuting as “terrorist” conduct which is lawful under IHL
In the past decade, some opinions and decisions have emerged from national courts in favour of designating and criminalizing certain acts and activities as “terrorist” despite their lawfulness under IHL. These have included impartial humanitarian activities and non-prohibited conducts of NSAGs in NIAC.
Impartial humanitarian activities
As the “terrorism” and “support to terrorism” offences have increasingly been broadly interpreted – both in domestic legislation and by national courts – they have grown to encompass the provision of training and education to “terrorist” groups,Footnote 119 providing humanitarian assistance and medical care to these groups,Footnote 120 or simply being present in designated “terrorist” areas.Footnote 121 In particular, Buissonière, Woznick and Rubinstein have found that across sixteen countries surveyed, “practices in at least ten countries appear to suggest that the authorities interpret support to terrorism to include the provision of healthcare”.Footnote 122 If these laws do not exclude impartial humanitarian activities from their scope of application, this can lead to the prosecution of humanitarian actors, including medical personnel. There have been a number of cases of medical professionals being put on trial for providing assistance to members of NSAGs regarded as “terrorist” after 2001. These legal proceedings were pursued in domestic courts, for “supporting terrorism in the course of armed conflict”.Footnote 123
In 2009, a doctor who provided medical and surgical services to members of the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, FARC) was convicted in Colombia.Footnote 124 He had “managed referral to specialized clinics that he thought medically necessary”.Footnote 125 In this case, the Court “reasoned that those referral services fell outside of the scope of medical activities protected by IHL (as incorporated into Colombian law) and into the crime of rebellion”.Footnote 126 Further, the Court noted that the medical activities “strengthened the guerrilla group since healed members of the group would subsequently return to fight against the government armed forces”,Footnote 127 which was “enough to condemn the accused for the crime of rebellion”.Footnote 128
Several indictments and convictions in the United States of health personnelFootnote 129 have fallen under the “material support” legislation,Footnote 130 including in relation to “providing medical support to wounded jihadists knowing that they have engaged in terrorist activity”.Footnote 131 In these cases, the courts have reasoned that the defendants’ allegiance to designated foreign terrorist organizations, such as ISIL and Al-Qaeda, turned their medical activities into material support in the form of “advice or assistance derived from scientific, technical or other specific knowledge”.Footnote 132 One of the courts “indicated that a different conclusion might have been reached in the case of independent humanitarian workers ‘act[ing] entirely independently of [a] foreign terrorist organization’”.Footnote 133 Buissonière, Woznick and Rubinstein refer to other cases of medical staff who have been investigated, prosecuted and in some cases convicted for offences related to assisting or supporting terrorism, including in Iraq, Syria and Australia.Footnote 134
To comply with their obligations under IHL, and more recently, with the spirit of UNSC Resolution 2462, some States have adopted a sectoral humanitarian exemption. This is the case for Switzerland,Footnote 135 the UK,Footnote 136 some EU member States (pursuant to Recital 38 of EU Directive 2017/541 on combating terrorism),Footnote 137 Australia,Footnote 138 New Zealand,Footnote 139 the Philippines,Footnote 140 Chad and Ethiopia,Footnote 141 among others. Humanitarian exceptions, and their nuances, are discussed as a good practice in the section below entitled “Good Practices at the Domestic Level”.
Non-prohibited conducts in NIAC
As noted above, in an armed conflict, an act of violence committed by a designated “terrorist” NSAG against the opposing State's armed forces which constitute a military target would not be illegal according to IHL if the attacker respected the principles of distinction, proportionality and precaution, along with all other applicable rules of IHL.Footnote 142 It should be noted, however, that there is no immunity for members of NSAGs in domestic law, under which they can be prosecuted for their mere participation in hostilities.Footnote 143 Some States, like New ZealandFootnote 144 and EU member States such as the Netherlands and Belgium (in accordance with EU Directive 2017/541, which replaced Framework Decision 2005/671/JHA),Footnote 145 have resorted to an IHL carve-out in determining that their counterterrorism legislation would not apply to “the actions of armed forces during an armed conflict”.Footnote 146 Courts’ interpretations of what constitutes armed forces vary, however, as some States may solely invoke this clause in favour of States’ armed forces and some NSAGs.Footnote 147 In Belgium, for instance, while this exclusion was accepted in regard to the Kurdistan Workers’ Party (Partiya Karkerên Kurdistanê, PKK), the clause was rejected when invoked in relation to designated terrorist groups such as Al-Shabaab, IS and Jabhat Al-Nusra.Footnote 148 Indeed, the prosecutor determined that these groups were “not ‘armed forces’ in the sense of IHL”, in part because they committed terrorist attacks and were terrorist groups.Footnote 149
The examples below show that terrorist offences have been used to prosecute individuals for their participation in hostilities, without necessarily assessing the legality of their conduct under IHL. Although it remains the prerogative of States to do this, it may ultimately give the impression that participation in hostilities is in itself a terrorist offence.Footnote 150
In the case of Regina v. Mohammed Gul,Footnote 151 the UK Court of Appeal provided a broad interpretation of the UK's Terrorism Act, arguing that attacks by NSAGs against governmental armed forces “with the requisite intention set in the [Terrorism] Act could qualify as acts of terrorism”.Footnote 152 In Prosecutor v. Imane B et al.,Footnote 153 the Court in the Netherlands held that “participation in the armed struggle in Syria on the side of these jihadi armed groups always entails the commission of terrorist crimes”.Footnote 154 The Court held that “in a non-international armed conflict IHL is not exclusively applicable”Footnote 155 and that “participation in the armed conflict in Syria, therefore, is also punishable under Dutch law”.Footnote 156 The Court also considered that “not a single act of war performed by a member of an organized armed group is legitimate”.Footnote 157 With the same rationale,Footnote 158 in Prosecutor v. Maher H in the Netherlands,Footnote 159 the defendant was confirmed guilty on appeal for “preparatory acts with a view to committing murder and manslaughter with a terrorist purpose”.Footnote 160 The accused “participated in the armed Jihadi campaign in Syria with a terrorist objective”, and “it can be inferred that the suspect's intent was to … commit a terrorist offence or a crime that facilitates the commission of a terrorist offence”.Footnote 161 In these cases, it is interesting to note that defendants were charged with preparatory terrorist offences for their participation in hostilities.Footnote 162 Indeed, counterterrorism doctrines put strong emphasis on prevention in criminalizing preparatory acts such as the financing of attacks or training for the commission of an attack, as outlined in UNSC Resolutions 2178 and 2396.Footnote 163
Other cases where the link to armed conflict is comparatively more limited than the cases analyzed above are still worth noting, including the case of R v. Mashudur Choudhury in the UK (2014),Footnote 164 where the defendant was convicted of “one count of engaging in conduct in preparation for acts of terrorism” for his travel to Syria in 2013. More recently, a first case was reportedly filed under the Philippines Anti-Terror Act concerning “preparation for the commission of terrorism” by the wives of Abu Sayaf members in Jolo, Sulu.Footnote 165 As States continue to domesticate UNSC Resolutions 2178 and 2396, a surge in the use of terrorism charges to prosecute foreign fighters who participate in hostilities can be expected.Footnote 166 As noted above, while not technically wrong this may ultimately convey the message that participation in hostilities is in itself a terrorist offence.Footnote 167
Good practices at the domestic level
If more systematically used and developed (by the legislature and by judicial authorities respectively), the two good practices outlined below – (1) IHL and humanitarian exemptions in counterterrorism legislation, and (2) dual legal qualification – could help harmonize IHL and the counterterrorism frameworks at the national level.
IHL exclusion clauses and humanitarian safeguards
The incorporation of an IHL exclusion clause in national counterterrorism legislation is regarded as a good practice. Among others, this is foreseen by the New Zealand Terrorism Suppression Act,Footnote 168 by the Belgium Penal CodeFootnote 169 and more recently in EU Directive 2017/541 on combating terrorism.Footnote 170 These exclusion clauses have different wordings. The EU Directive excludes “activities of armed forces during periods of armed conflict, which are governed by international humanitarian law …, and … activities of the military forces of a State in the exercise of their official duties”.Footnote 171 The Belgian exclusion clause applies “to the actions of armed forces during an armed conflict as defined in and subject to IHL [and] to the actions of the armed forces of a State during the exercise of their official duties”.Footnote 172 The New Zealand clause excludes certain offences of the 1961 Crimes Act, including those which relate to jurisdiction in respect of crimes on ships or aircraft beyond New Zealand.Footnote 173 These clauses first and foremost aim at excluding activities of States’ military forces from the application of the counterterrorism legislation.Footnote 174 Depending on the exclusion clause and its interpretation by domestic courts, the clause may exempt certain NSAGs’ activities in situations of armed conflict, as the case of the exception provided by a Belgian court to the PKK shows.Footnote 175 The adoption and interpretation of IHL exclusion clauses to the benefit of NSAGs is controversial, however, as States’ judicial authorities retain the right to prosecute members of NSAGs for their mere participation in hostilities, regardless of the legality of their conduct under IHL.
Another good practice is the adoption of humanitarian safeguards, sometimes referred to as humanitarian exceptions or sectoral humanitarian exemptions,Footnote 176 which “grant immunity from counter-terrorism measures in respect to those individuals and entities involved in (principled) humanitarian action”.Footnote 177 These ensure that humanitarian activities governed by IHL do not fall within the scope of, and are not punishable under, given counterterrorism legislations. Several countries, including Switzerland,Footnote 178 Australia,Footnote 179 the UK,Footnote 180 the Philippines,Footnote 181 Chad and Ethiopia,Footnote 182 have adopted sectoral humanitarian exemptions in their counterterrorism legislative frameworks. The EU has also adopted a humanitarian exception in its counterterrorism directive,Footnote 183 but its transposition remains at member States’ discretion.Footnote 184 There are various models of sectoral humanitarian exemptions.Footnote 185
Some of these exceptions apply to all principled humanitarian organizations, like Recital 38 of EU Directive 2017/541.Footnote 186 On the other hand, others only apply to some humanitarian organizations. For instance, the humanitarian exemption of the Philippine Anti-Terrorist Act is limited to “activities undertaken by the ICRC, the Philippine Red Cross and other State-recognized impartial humanitarian partners or organizations in conformity with IHL”.Footnote 187 The bill currently under review in the Dutch Senate, similarly, only foresees that “the prohibition to stay [in an area controlled by a terrorist organization] is not applicable if a person is there on behalf of the state or an inter-governmental organisation, or if the person is a representative of the Dutch Red Cross or the International Committee of the Red Cross”.Footnote 188 Further, some of the sectoral humanitarian exemptions apply in relation to the entire counterterrorism framework (like in SwitzerlandFootnote 189 and the EUFootnote 190), while others, like in New Zealand,Footnote 191 AustraliaFootnote 192 and the UK,Footnote 193 concern only some terrorist offences (including entry into a “declared area” or providing resources to a foreign fighter).Footnote 194
Humanitarian safeguards/exemptions/exceptions – particularly as they relate to the entire domestic counterterrorism framework and encompass all principled humanitarian actors – remain the best explicit option for preventing humanitarian activities from being punished under counterterrorism law and for helping to mitigate indirect impacts of counterterrorism legislation on humanitarian actions, including de-risking and an overall “chilling effect”.Footnote 195
Dual legal qualification
A second good practice has been for judicial authorities to assess conducts and adjudicate them simultaneously under domestic counterterrorism legislation and IHL. For now, only national courts of some EU member States have used these two legislative frameworks to apply to the same case. In Europe, dual legal qualification has enabled States to develop some interactions between the two bodies of law in order to deal with the same case. As noted above, dual legal qualification is allowed either by a legal framework which intrinsically connects the definition of terrorism to the commission of international crimes, such as in Germany,Footnote 196 or “provided that all relevant facts of the act are not exhaustively judged under one set of legislation”,Footnote 197 such as in the Netherlands. Such practice has enabled States to comply with their obligation to investigate and prosecute war crimes under IHL, and to respond to the obligations imposed by the UNSC. Dual legal qualification ensures that the criminal responsibility of perpetrators is fully accounted for and assessed under the relevant legal regimes.
Conclusion
The UNSC has so far failed to harmonize IHL and the counterterrorism framework. The various interpretations of the UNSC terrorist and ancillary offences by States and their ongoing domestication have not created any coherence among counterterrorism legislations around the world, nor about the way national courts adjudicate over violations of these with regard to IHL.
A cross-cutting trend has been observed at the domestic level: individuals have been charged and indicted for terrorist offences with regard to activities committed during armed conflict, without prior assessment of the legality or illegality of these activities according to IHL. Across the cases surveyed, it seems that States have not sufficiently developed appropriate prosecutorial strategies in accordance with IHL, as required by UNSC Resolution 2396.Footnote 198 Twenty years after 9/11, the consequences of UNSC binding decisions on counterterrorism vis-à-vis IHL have started to resonate in domestic courts. Without a change of approach, this will have further legal and political implications in the long run.
At the national level, States should develop the appropriate legislative and regulatory framework to ensure that they can comply with their obligation to investigate and, if appropriate, prosecute war crimes.Footnote 199 States which do not have the jurisdiction to repress war crimes should adapt their legislative and regulatory frameworks, including in activating the principle of universal jurisdiction.Footnote 200 Further, States should systematically adopt sectoral humanitarian exemptions to safeguard principled humanitarian activities from repressive counterterrorism frameworks.
When national legislative frameworks allow for it and when relevant, dual legal qualification should be preferred over the prosecution of terrorist offences alone (without any other incrimination), particularly when dealing with serious violations of the laws and customs of war and war crimes under the Rome Statute. In order to overcome procedural barriers to prosecution – including access to evidence – States should actively support and cooperate with evidence collection mechanisms and initiatives.Footnote 201
Finally, an IHL exclusion clause could be adopted in counterterrorism legislations to ensure that conducts which are not prohibited under IHL are not prosecuted as terrorist offences. Indeed, when no serious violations of laws and customs of war have been committed in armed conflict, members of NSAGs should be prosecuted in domestic courts for mere “participation in hostilities” or be granted amnesty at the end of hostilities.Footnote 202 As this recommendation remains controversial, States could identify the policy considerations and implications of this practice, depending on contexts, in relevant fora at the UN or with civil society initiatives.Footnote 203
In parallel to changes at the national level, efforts should be made by the UN system (including the UNSC, but also the Secretariat and subsidiary organs of the UNSC) and mandated bodies such as the ICRC to support harmonization between IHL and counterterrorism frameworks. To start with, future UNSC counterterrorism resolutions should include humanitarian safeguards requiring States to exempt humanitarian activities from their counterterrorism frameworks at the national level. Stronger language should also be adopted to go further than the UNSC Resolution 2462 provision to “take into account”Footnote 204 the effects of counterterrorism measures on humanitarian activities; the UNSC should require States to mitigate these effects.Footnote 205 In addition, upcoming UNSC resolutions on counterterrorism could include language on States’ obligation to investigate and prosecute activities which may amount to war crimes, regardless of the designation of the perpetrator as “terrorist”.Footnote 206 This would put emphasis on the obligation of States under IHL to investigate and prosecute war crimes, even in counterterrorism contexts. Further, language emphasizing that the broad criminalization of “terrorism” may limit the scope of political engagement in conflict resolution and peace processes and transitional justice could be adopted to highlight these political risks.Footnote 207
In the meantime, until the language of UNSC counterterrorism resolutions is improved, relevant entities of the UN system should provide practical guidance for the implementation of the existing language.Footnote 208 Guidance could be developed by Inter-Agency Working Groups of the Counter-Terrorism Compact – including the Inter-Agency Working Group on Criminal Justice and Legal Responses (chaired by the UN Office on Drugs and Crime and co-chaired by CTED) and the Inter-Agency Working Group on Promoting and Protecting Human Rights and the Rule of Law – in consultation with the Inter-Agency Standing Committee and the ICRC.Footnote 209 Finally, CTED, which is mandated to assist States in implementing requirements under UNSC resolutions in line with their obligations under IHL, could continue to bolster its IHL expertise and capacity so as to better support States in their interpretation and implementation of those resolutions.Footnote 210
The codification, interpretation and practices of States regarding the adjudication of terrorist-related offences committed in situations of armed conflict will influence the development of customary international law. Although these considerations may seem politically ludicrous when dealing with ISIL and affiliated groups, there is a need to caution against practices that could hamper IHL frameworks along with prospects for peace in the long run. As Ben Saul puts it, “[d]espite the shifting and contested meanings of ‘terrorism’ over time, the peculiar semantic power of the term, beyond its literal signification, is its capacity to stigmatize, delegitimize, denigrate, and dehumanize those at whom it is directed, including legitimate political opponents”Footnote 211 – and such an agenda has the power to erode the protection norms upheld by the laws of war. It is thus fundamental not to develop practices that may seem like a solution to contemporary terrorism but which are detrimental in the long run. Indeed, such practices may erode the carefully crafted balance between humanitarian considerations and military necessities as reflected in IHL and, in turn, shape future NIACs and risk hampering their resolution. Conducts and crimes occurring during and in connection with an armed conflict should be assessed in accordance with IHL, regardless of their “terrorist” label.
