Since Henry Dunant’s response to the horrors of Solferino, the idea of neutral agencies, independent of warring parties, able and permitted to render humane assistance to the victims of armed violence, combatant or not, has spread to be more or less universal. The status and prestige of the ICRC bespeak the power of that idea. There is no reason that this humane policy should be banished from the fields of armed violence that are not governed by the laws of war between States.
The lending of humanitarian assistance to all sides of a conflict, say in the nature of an insurrection, where one side fits the definition of a terrorist organisation, should also attract the benefits of this policy. But the policy should be seen as one where the nature and standing of the humanitarian agency is not merely incidental but is rather essential to the viability of that policy. For these reasons, agencies such as the ICRC, and support for their activities, should never fall foul of laws designed to counter terrorism by strangling support for terrorist organisations or preventing the financing of terrorism. The Red Crescent should be able to provide medical assistance to bombers alongside victims, without criminal liability.273
The First UN Special Rapporteur on the Promotion and Protection of Human Rights While Countering Terrorism, Martin Scheinin, reported on the importance of ensuring that exceptions from terrorism financing measures, in particular the freezing of assets, exist on humanitarian grounds. This is to ensure that non-governmental organisations which promote the protection of economic, social and cultural rights, can continue to function.274
The argument that preventing all support to terrorist individuals and organisations will make it more difficult for them to exist and to carry out terrorist acts in the future does not apply to the provision by such dedicated agencies of humanitarian aid. The delivery by them of such aid (eg delivery of training on IHL or provision of medical assistance to detainees) will not assist terrorist organisations to commit terrorist acts in such a way as to justify its prevention. The INSLM is concerned that Australia’s terrorism financing laws (as well as offences for training and supporting terrorist organisations) may result in what Prof Ben Saul describes as
273 See pp122-124 and Recommendation VI/3 of the INSLM’s Second Annual Report for a discussion of IHL and the
definition of “terrorist act” in the Criminal Code, including a recommendation that conduct covered by IHL should be excluded from the definition. Note also that the definition of terrorist act contained in the Financing of Terrorism Convention specifically refers to the intentional killing or maiming of those not involved in armed conflict (Art 2(b)). In R v Gul [2013] UKSC 64 (23 October 2013), the UK Supreme Court determined that the statutory definition of “terrorism” in sec 1 of the Terrorism Act 2000 (UK) includes military attacks by non-state armed groups in non- international armed conflict. After finding that the definition had been drafted in deliberately wide terms, the Court considered whether the definition must be interpreted more restrictively so as not to conflict with the UK’s international obligations. While the Court found significant support for the idea that the definition should not extend to situations of armed conflict, such support “falls far short of amounting to a general understanding which could be properly invoked as an aid to statutory interpretation” [45]. The Court held that there is no reason for interpreting the UK definition of terrorism more narrowly on the basis of international obligations as there is no accepted definition of terrorism in international law and although certain of the UN sectoral conventions on terrorism define terrorism to exclude activities of armed forces during an armed conflict, “it is quite impossible to suggest there is a plain or consistent approach in UN Conventions on this issue” [47]. The Court noted that while the issue is one for Parliament to decide, the concerns and suggestions about the width of the UK statutory definition identified in reports of the UK Independent Reviewer of Terrorism Legislation “merit serious consideration” and any legislative narrowing of the current definition “is to be welcomed, provided that it is consistent with the public protection to which the legislation is directed” [62].
274 Martin Scheinin, Report of the Special Rapporteur on the promotion and protection of human rights while countering
“the criminalization of legitimate humanitarian action by neutral and independent actors like the ICRC, impeding their work and aggravating human suffering in war.”275 The genuinely
humanitarian activities of people in such humanitarian agencies assisting populations in conflict zones should not fall within Australia’s counter-terrorism offences.
The UN Security Council has demanded that measures taken by States to counter-terrorism “must comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular, international human rights, refugee, and humanitarian law.”276 The Security Council has acknowledged that:-
…a great number of States and humanitarian organizations have expressed concerns at the possible adverse impact of sanctions on the most vulnerable segments of the population. Concerns have also been expressed at the negative impact sanctions can have on the economy of third countries.
In response to these concerns, relevant Security Council decisions have reflected a more refined approach to the design, application and implementation of mandatory sanctions. These refinements have included measures targeted at specific actors, as well as humanitarian exceptions embodied in Security Council resolutions.277
Australians are apparently travelling to conflict zones overseas in large enough numbers to excite the concern of our security and law enforcement agencies. Some of these individuals are thought to be undertaking genuinely humanitarian activities while others are engaging in conduct properly criminalized by Australia’s counter-terrorism and foreign incursion offences. The AFP’s submission to the INSLM recognized this trend in relation to the conflict in Syria:-
275 Prof Ben Saul, International Humanitarian Law Challenges Series – IHL and Terrorism Part IV – Ben Saul responds,
27 April 2013
276 UN Security Council Resolution 1456 (2003), para 6
277 UN Security Council, Security Council Sanctions Committees: An Overview http://www.un.org/sc/committees/.
On 17th April 2000, the Security Council established the Informal Working Group on General Issues of Sanctions to
develop general recommendations on how to improve the effectiveness of UN sanctions. In 2006, the Working Group submitted its report to the Security Council (S/2006/997), which contained recommendations and best practices on how to improve sanctions. The Report included a recommendation that the Security Council give “due consideration” to the humanitarian impact of resolutions during their drafting and “standardize humanitarian and other exemptions to all targeted measures, including arms embargoes, travel restrictions, aviation bans and financial sanctions.” para 3. The Security Council noted the recommendation and stated it is: “[c]ommitted to ensuring that fair and clear procedures exist for granting humanitarian exemptions” (UN Security Council Resolution 1730 (2006), preambular clause). A significant reform in this regard has been the establishment of the Office of the Ombudsperson to consider de-listing requests and make recommendations on such requests to the Security Council (see UN Security Council Resolution 1904 (2009)).
There has never been an international civil conflict that has prompted as many
Australians to travel to a warzone as the Syria crisis has, other than perhaps the Balkans war…The vast majority of Australians in Syria are there doing humanitarian work. There are however some who are there fighting with the Free Syrian Army or other groups that aim to overthrow government forces, and there’s also a handful that is fighting with al-Qaeda affiliated groups. It is this group that is causing us real concern, most of whom are still in Syria.278
The ICRC279 has expressed concern about the conflation of IHL and States’ counter-terrorism
laws and the potential criminalization of a range of humanitarian action undertaken by the ICRC in accordance with the Geneva Conventions:-
The ICRC is permitted and must in practice be free to offer its services for the benefit of civilians and other persons affected by an armed conflict who find themselves in the power of or in the area of control of the non-state party…The principle of neutrality means that the ICRC “may not take sides in hostilities or engage at any time in
controversies of a political, racial, religious or ideological nature”…The ICRC could not abide, or be seen to be abiding by this principle if they were directed, as a result of anti- terrorist legislation or other measures, to carry out their activities for the benefit only of persons on one side of the divide in an armed conflict or other situation of violence. 280
Australia’s counter-terrorism laws criminalize the provision of funds and assets, support and training to terrorist organisations and may arguably bring within their ambit humanitarian activity involving contact with individuals or entities associated with terrorism. As there is no humanitarian aid exception, these laws potentially criminalize the work carried out by ICRC personnel in accordance with the ICRC’s mandate under IHL.
Common Art 3 of the Geneva Conventions specifically allows the ICRC to offer its services to the parties to a non-international armed conflict, including the non-state party to the
278 AFP Submission to the INSLM, 14th October 2013
279 The ICRC is an independent humanitarian organisation which promotes IHL and provides humanitarian
assistance in accordance with its mandate. The work of the ICRC is mandated by States though the four Geneva Conventions and their Additional Protocols which confer on the ICRC a mandate to act in the event of international armed conflict (including the right to visit prisoners of war and civilian internees). The Conventions also give the ICRC a broad right of initiative in non-international armed conflicts (with a right of humanitarian initiative recognized by the international community and enshrined in Art 3 common to the four Geneva Conventions). All States are bound by the four Geneva Conventions which, in times of armed conflict, protect wounded, sick and shipwrecked members of the armed forces, prisoners of war and civilians.
280 International Committee of the Red Cross, International Law And The Challenges Of Contemporary Armed
Conflicts, ICRC Report presented at the 31st International Conference of the Red Cross and Red Crescent, Geneva
conflict who may be proscribed as a terrorist organisation under Australian law. The current prohibition in Australia’s counter-terrorism laws against support, training and the provision of funds or any type of assets criminalizes the core work of the ICRC in a non-international armed conflict. The ICRC gives the following examples of humanitarian activity within its mandate which may be captured by Australia’s counter-terrorism legislation:-
The provision of material assistance to detainees suspected of or condemned for being members of terrorist organisations; 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 civil 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.281
Recommendation V/2: Section 21 of the UN Charter Act, sec 9 of the Charter of the United
Nations (Sanctions-the Taliban) Regulation 2013 (Cth), reg 10 of the Charter of the United Nations (Sanctions-Al-Qaida) Regulations 2008 (Cth)282 and secs 102.5, 102.6, 102.7 and
102.8283 of the Criminal Code should be amended to include an exception for activities that are
humanitarian in character and are conducted by or in association with the ICRC, the UN or its agencies, or (perhaps) agencies of like character designated by a Minister.284
281 International Committee of the Red Cross, International Law And The Challenges Of Contemporary Armed
Conflicts, ICRC Report presented at the 31st International Conference of the Red Cross and Red Crescent, Geneva
(2011) 31IC/11/5.1.2, p52
282 The Charter of the United Nations (Sanctions-the Taliban) Regulation 2013 (Cth) and the Charter of the United
Nations (Sanctions-Al-Qaida) Regulations 2008 (Cth) being related laws for the purposes of subpara 6(1)(a)(ii) of the
INSLM Act.
283 Thus the existing exception in para 102.8(4)(c) should be amended by an appropriate qualification.