Hostname: page-component-cd9895bd7-lnqnp Total loading time: 0 Render date: 2024-12-25T06:13:01.458Z Has data issue: false hasContentIssue false
  • English
  • Français

Humanitarian engagement under counter-terrorism: a conflict of norms and the emerging policy landscape

Published online by Cambridge University Press:  16 March 2012

Naz K. Modirzadeh ,
Dustin A. Lewis  and
Claude Bruderlein
Get access Rights & Permissions [Opens in a new window]

Abstract

This article identifies two countervailing sets of norms – one promoting humanitarian engagement with non-state armed groups (NSAGs) in armed conflict in order to protect populations in need, and the other prohibiting such engagement with listed ‘terrorist’ groups in order to protect security – and discusses how this conflict of norms might affect the capacity of humanitarian organizations to deliver life-saving assistance in areas under the control of one of these groups. Rooted in international humanitarian law (IHL), the first set of norms provides a basis for humanitarian engagement with NSAGs in non-international armed conflict for the purpose of assisting populations under their control and promoting compliance with the rules of IHL. The second set of rules attempts to curtail financial and other forms of material support, including technical training and co-ordination, to listed ‘terrorist’ organizations, some of which may qualify as NSAGs under IHL. The article highlights counter-terrorism regulations developed by the United States and the United Nations Security Council, though other states and multilateral bodies have similar regulations. The article concludes by sketching ways in which humanitarian organizations might respond to the identified tensions.

Type
Articles
Information
International Review of the Red Cross , Volume 93 , Issue 883: Engaging armed groups , September 2011 , pp. 623 - 647
Copyright
Copyright © International Committee of the Red Cross 2012

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Chief Justice Roberts, United States Supreme Court, writing on behalf of the majority, US Supreme Court, Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2725 (2010) (internal citations omitted).

2 This article uses the term ‘non-state armed groups’ as a general reference for non-state entities that engage in hostilities or that perpetrate acts of terrorism (or both). The use of this term is not meant to qualify the legal status of any of the non-state entities identified in this article. Acts of terrorism can be perpetrated during an armed conflict or outside of an armed conflict. This article does not take a position on whether any specific ‘terrorist’ group (as designated by states or multilateral bodies in their counter-terrorism regulations) constitutes an organized armed group for purposes of IHL.

3 See, e.g., Geneva Convention III (GC III), Art. 9; Geneva Convention IV (GC IV), Arts. 10 and 23; Additional Protocol I (AP I), Art. 70; Additional Protocol II (AP II), Art. 18.

4 US Supreme Court, Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010).

5 See, e.g., Heike Speiker, ‘The right to give and receive humanitarian assistance’, in Hans-Joachim Heintze and Andrej Zwitter (eds), International Law and Humanitarian Assistance: A Crosscut Through Legal Issues Pertaining to Humanitarianism, Springer-Verlag, Berlin, 2011, pp. 7–18; Dinstein, Yoram, ‘The right to humanitarian assistance’, in Naval War College Review, Vol. 53, No. 4, 2000, pp. 77–92Google Scholar; Abril Stoffels, Ruth, ‘Legal regulation of humanitarian assistance in armed conflict: achievements and gaps’, in International Review of the Red Cross, Vol. 86, No. 855, 2004, pp. 515–546CrossRefGoogle Scholar; Barber, Rebecca, ‘Facilitating humanitarian assistance in international humanitarian and human rights law’, in International Review of the Red Cross, Vol. 91, No. 874, 2009, pp. 383–391CrossRefGoogle Scholar.

6 The content and extent of the obligation to seek the consent of the relevant party or parties may be discerned by reference to the treaty provisions and customary law standards applicable to a specific situation. IHL treaty provisions pertaining to humanitarian access in international armed conflicts (including situations of occupation) include, among others, GC IV, Arts. 10, 11, 23, 30, 59, and 63; AP I, Art. 70(1). Such provisions in NIACs include Article 3 Common to the Geneva Conventions (‘An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict’); AP II, Art. 18. See also Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume I: Rules, ICRC and Cambridge University Press, Cambridge, 2005CrossRefGoogle Scholar, ‘Rule 55’, pp. 196–197 (finding a rule of customary international law such that: ‘[t]he parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control’). Regarding NIACs, AP II has a higher threshold of application than Common Article 3: AP II, Art. 1(1). AP II states that humanitarian organizations must obtain the consent of the High Contracting Party concerned: AP II, Art. 18(2). The ICRC's Commentary on the provision states that, ‘In principle the “High Contracting Party concerned” means the government in power. In exceptional cases when it is not possible to determine which are the authorities concerned, consent is to be presumed in view of the fact that assistance for the victims is of paramount importance and should not suffer any delay’. Sandoz, Yves, Swinarski, Christophe, and Zimmermann, Bruno (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987Google Scholar, para. 4884. The Commentary further states that the state-consent requirement in Article 18(2) of AP II ‘does not in any way reduce the ICRC's right of initiative’ laid down in Common Article 3; as a result, ‘the ICRC continues to be entitled to offer its services to each party’. Ibid., paras. 4891–4892.

7 Because NSAGs fulfilling certain criteria may be parties to NIACs only, this article focuses on IHL provisions applicable to that type of conflict. For an overview of IHL pertaining to humanitarian access in both international armed conflicts (including situations of occupation) and non-international armed conflicts, see, e.g., H. Speiker, above note 5, pp. 7–18.

8 Common Article 3; AP II, Art. 18. According to the ICRC, states may not regard an offer of humanitarian relief during an NIAC as an unfriendly act. Sandoz et al., above note 6, p. 41; see also International Court of Justice (ICJ), Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986, para. 242, stating generally that: ‘There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law’.

While parties may impose certain conditions on relief actions, these conditions cannot intentionally inhibit the delivery of humanitarian assistance to the population, even behind enemy lines. See Sandoz et al., above note 6, paras. 4887 and 4888, stating that: ‘The [relief] actions would have to strictly comply with any conditions that might be imposed (examples: arrangement of transits in accordance with a precise timetable and itinerary, checking on convoys)’, but emphasizing that: ‘Once relief actions are accepted in principle, the authorities are under an obligation to co-operate, in particular by facilitating the rapid transit of relief consignments and by ensuring the safety of convoys’.

9 See, e.g., Common Article 3(2): ‘The wounded and sick shall be collected and cared for’; AP II, Arts. 7, 8, 9(1): ‘Medical and religious personnel shall be respected and protected and shall be granted all available help for the performance of their duties. They shall not be compelled to carry out tasks which are not compatible with their humanitarian mission’; 10(1): ‘Under no circumstances shall any person be punished for having carried out medical activities compatible with medical ethics, regardless of the person benefiting therefrom’; and 18(1): ‘Relief societies located in the territory of the High Contracting Party, such as Red Cross (Red Crescent, Red Lion and Sun) organizations, may offer their services for the performance of their traditional functions in relation to the victims of the armed conflict. The civilian population may, even on its own initiative, offer to collect and care for the wounded, sick and shipwrecked’.

10 See, e.g., UN Security Council Res. 1964, 22 December 2010, concerning the situation in Somalia (the Council ‘Calls on all parties and armed groups to take appropriate steps to ensure the safety and security of humanitarian personnel and supplies, and demands that all parties ensure full, safe and unhindered access for the timely delivery of humanitarian aid to persons in need of assistance across the country’); UNSC Res. 1923, 25 May 2010, para. 22, concerning the situation in Chad, the Central African Republic, and Sudan (the Council ‘Reaffirms the obligation of all parties to implement fully the rules and principles of international humanitarian law, particularly those regarding the protection of humanitarian personnel, and furthermore requests all the parties involved to provide humanitarian personnel with immediate, free and unimpeded access to all persons in need of assistance, in accordance with applicable international law’); UNSC Res. 1894, 11 November 2009, para. 14 (concerning its thematic area of ‘Protection of civilians’, the Council ‘Stresses the importance for all parties to armed conflict to cooperate with humanitarian personnel in order to allow and facilitate access to civilian populations affected by armed conflict’). In addition to demanding that all parties to armed conflict adhere to their obligations under IHL, the Security Council has also demonstrated a tendency to urge all parties, including NSAGs, to ensure that the civilian population is protected and that the population's needs are met. See, e.g., UNSC Res. 1894, 11 November 2009, para. 1 (the Council ‘Demands that parties to armed conflict comply strictly with the obligations applicable to them under international humanitarian, human rights and refugee law, as well as to implement all relevant decisions of the Security Council and in this regard, urges them to take all required measures to respect and protect the civilian population and meet its basic needs’); UNSC Res. 1417, 14 June 2002, para. 5 (concerning the situation in the Democratic Republic of the Congo, the Council ‘calls on the de facto authorities in regions affected to ensure the protection of civilians and the rule of law’); UNSC Res. 1564, 18 September 2004, preamble (concerning the situation in Sudan, the Council stressed that ‘the Sudanese rebel groups, particularly the Justice and Equality Movement and the Sudanese Liberation Army/Movement, must also take all necessary steps to respect international humanitarian law and human rights law’). See generally Constantinides, Aristotle, ‘Human rights obligations and accountability of armed opposition groups: the practice of the UN Security Council’, in Human Rights and International Legal Discourse, Vol. 4, No. 1, 2010, pp. 89–110Google Scholar.

11 UNSC Res. 1612, 26 July 2005; UNSC Res. 1882, 4 August 2009; UNSC Res. 1960, 16 December 2010.

12 The role of the UN Security Council in formulating multilateral counter-terrorism policy should not be underestimated. In discussing why so many countries adopted similar counter-terrorism laws after 9/11, Kim Lane Scheppele has identified the change as ‘radiat[ing] out from the U.N. Security Council’. Lane Scheppele, Kim, ‘The international standardization of national security law’, in Journal of National Security Law and Policy, Vol. 4, 2010, p. 439Google Scholar.

13 The domestic law in other states, such as Australia, also has the capacity to affect humanitarian engagement with NSAGs. See, e.g., Criminal Code Act 12 of 1995, as amended, c. 102.1–102.8 (Australia). See generally Pantuliano, Sara, Mackintosh, Kate, and Elhawary, Samir, with Metcalfe, Vicki, ‘Counter-terrorism and humanitarian action: tensions, impact and ways forward’, in HPG Policy Brief 43, October 2011, pp. 2–5Google Scholar, available at: http://www.odi.org.uk/resources/docs/7347.pdf (last visited 4 December 2011); Harvard Program on Humanitarian Policy and Conflict Research, ‘Humanitarian action under scrutiny: criminalizing humanitarian engagement’, HPCR Working Paper, February 2011, pp. 23–25, available at: http://www.hpcrresearch.org/research/criminalizing-humanitarian-engagement (last visited 4 December 2011); Thorne, Kristina, ‘Terror lists and humanitarian assistance’, in Humanitarian Exchange Magazine, Issue 37, March 2007Google Scholar, available at: http://www.odihpn.org/report.asp?id=2874 (last visited 24 January 2012).

14 18 U.S.C. para. 2339B(a)(1); para. 2339B(g)(4); see also 18 U.S.C. para. 2339A(b)(1). As of September 2011, the Secretary of State had designated forty-nine organizations as FTOs; the list is available at: http://www.state.gov/j/ct/rls/other/des/123085.htm (last visited 4 December 2011). US federal law also prohibits providing material support or resources to ‘terrorists’: 18 U.S.C. para. 2339A.

15 18 U.S.C. para. 2339A(b)(2), defined as ‘instruction or teaching designed to impart a specific skill, as opposed to general knowledge’.

16 18 U.S.C. para. 2339A(b)(3), defined as ‘advice or assistance derived from scientific, technical, or other specialized knowledge’.

17 According to the statute, ‘No person may be prosecuted under this section in connection with the term “personnel” unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with one or more individuals (who may be or include himself) to work under that terrorist organization's direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization's direction and control.’ 18 U.S.C. para. 2339B(h).

18 18 U.S.C. para. 2339A (1994 edition); 110 Stat. 1214 title III, subtitle B sec. 323, 24 April 1996.

19 The House Conference Report accompanying the original legislation stated that medicine ‘should be understood to be limited to the medicine itself, and does not include the vast array of medical supplies’. 5 H.Rept. 104–383, section 103, 1995. See also Ahilan T. Arulanantham, Testimony at Oversight Hearing on Amendments to the Material Support for Terrorism Laws: Section 805 of the USA PATRIOT Act and Section 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004, Before the Subcommittee on Crime, Terrorism and Homeland Security of the House Judiciary, 10 May 2005, arguing that: ‘[t]o prevent outbreaks, humanitarian organizations must provide displaced people with water purification systems, toilets, tents, and other such goods which are not “medicine” but nonetheless serve an absolutely critical medical function’.

20 ‘No person may be prosecuted under this section in connection with the term “personnel”, “training”, or “expert advice or assistance” if the provision of that material support or resources to a foreign terrorist organization was approved by the Secretary of State with the concurrence of the Attorney General’. 18 U.S.C. para. 2339B(j). However, the statute provides that the ‘Secretary of State may not approve the provision of any material support that may be used to carry out terrorist activity’. 18 U.S.C. para. 2339B(j).

21 ‘Terrorism’ as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, and ‘terrorist activity’ as defined in section 212(a)(3)(B) of the Immigration and Nationality Act.

22 18 U.S.C. para. 2339B(a)(1).

23 18 U.S.C. para. 2339B(d)(1)(C).

24 Holder v. HLP, Opening Brief for Humanitarian Law Project, et al., pp. 17–21.

25 Humanitarian Law Project v. Reno, 9 F.Supp.2d 1176, C.D.Cal. (1998); Humanitarian Law Project v. Reno, 205 F.3d 1130, 9th Cir. (2000); Humanitarian Law Project v. Ashcroft, 309 F.Supp.2d 1185, C.D.Cal. (2004); Humanitarian Law Project v. United States Department of Justice, 393 F.3d 902, 9th Cir. (2004); Humanitarian Law Project v. Gonzales, 380 F.Supp.2d 1134, C.D.Cal. (2005); Humanitarian Law Project v. Mukasey, 552 F.3d 916, 9th Cir. (2009); Humanitarian Law Project v. Holder, 130 S. Ct. 48, (2009); US Supreme Court, Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010).

26 18 U.S.C. para. 2339A.

27 18 U.S.C. para. 2339B.

28 For an excellent summary of the statute and its legislative history, see Charles Doyle, Terrorist Material Support: An Overview of 18 U.S.C. 2339A and 2339B, Congressional Research Service, 19 July 2010, available at: http://www.fas.org/sgp/crs/natsec/R41333.pdf (last visited 4 December 2011). The Center for Constitutional Rights, which litigated the case, hosts a collection of pleadings and decisions pertaining to the case, including all the case documents referenced in this section, available at: http://ccrjustice.org/holder-v-humanitarian-law-project (last visited 4 December 2011).

29 Holder v. HLP, Opening Brief for Humanitarian Law Project, et al., pp. 17–21.

30 Ibid., pp. 21–22.

31 Holder v. HLP, Brief for the Government (respondents), p. 14.

32 Holder v. HLP, Reply Brief for the Government (respondents), p. 38, citing Humanitarian Law Project v. Reno, 205 F.3d, 1130, 1133, 9th Cir. (2000). In its Opening Brief, the Government – citing a Supreme Court decision explaining that ‘peaceable assembly for lawful discussion cannot be made a crime’ – argued that the material-support statute at issue ‘is fully consistent with this principle: it does not prevent petitioners from peaceably assembling with members of the PKK and LTTE for lawful discussion. It prevents the separate step of rendering material support, in the form of property or services, to these groups based on their demonstrated willingness to commit acts of terror rather than on their political views.’ Opening Brief for the Government (respondents), p. 61, citing De Jonge v. Oregon, 299 U.S. 353, 365 (1937).

33 Holder v. HLP, Reply Brief for the Government (respondents), p. 39.

34 Ibid.

35 Holder v. HLP, Brief of Amicus Curiae of the Carter Center, Christian Peacemaker Teams, Grassroots International, Human Rights Watch, International Crisis Group, the Institute for Conflict Analysis and Resolution at George Mason University, the Kroc Institute for International Peace Studies at Notre Dame University, Operation USA, and Peace Appeal Foundation in Support of Humanitarian Law Project, et al., 23 November 2009, pp. 25–26.

36 Ibid., p. 26.

37 Ibid., pp. 26–27.

38 The dissent referred to the Geneva Conventions in relation to what type of ‘relief’ was meant by the plaintiffs' proposal to ‘teach PKK members how to petition various representative bodies such as the United Nations for relief’ (internal citations omitted; emphasis added in the dissent). US Supreme Court, Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2739 (2010).

39 An overview, with an emphasis on criminal procedure, of how – and the extent to which – various systems incorporate international legal norms into their domestic legal orders is available in Brants, Chrisje and Franken, Stijn, ‘The protection of fundamental human rights in criminal process: general report’, in Utrecht Law Review, Vol. 5, October 2009, pp. 7, 14–16CrossRefGoogle Scholar.

40 For discussions about the compatibility of the US's IHL obligations with its domestic counter-terrorism laws, see Justin A. Fraterman, ‘Criminalizing humanitarian relief: are US material support for terrorism laws compatible with international humanitarian law?’, January 2011, available at: http://ssrn.com/abstract=1750963 (last visited 4 December 2011); Elizabeth Holland, ‘Holder v. Humanitarian Law Project and the potential to cripple humanitarian assistance in armed conflict’, June 2011, available at: http://ssrn.com/abstract=1939008 (last visited 4 December 2011); White, Jennifer R., ‘IEEPA's override authority: potential for a violation of the Geneva Conventions’ right to access for humanitarian organizations?’, in Michigan Law Review, Vol. 104, No. 8, 2006, pp. 2019–2055Google Scholar.

41 US Supreme Court, Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2710, 2724, 2729 (2010).

42 Ibid., at 2711.

43 Ibid., at 2740.

44 Pursuant to the authorities of the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.), section 5 of the United Nations Participation Act of 1945, as amended (22 U.S.C. 287c) (UNPA), and section 301 of title 3, United States Code.

45 EO 13224, sections 1(c)–(d).

46 EO 13224, section 4; see also 50 U.S.C. para. 1702(b)(2).

47 Section 106 of the USA PATRIOT Act amended the IEEPA by adding the phrase ‘block during the pendency of an investigation’ after the word ‘investigate’ in 50 U.S.C. para. 1702 (a)(1)(B).

48 The list of parties subject to EO 13224 are on OFAC's website, available at: http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx (last visited 4 December 2011).

49 KindHearts for Charitable Humanitarian Dev., Inc. v. Geithner, 647 F. Supp.2d 857 (N.D. Ohio 2009).

50 Al Haramain Islamic Found., Inc. v. U.S. Dep't of the Treasury, Civil No. 07-1155-KI, 2009 WL 3756363 (D. Or. Nov. 5, 2009); Al Haramain Islamic Found., Inc. v. U.S. Dep't of the Treasury, 585 F.Supp. 2d 1233 (D. Or. 2008).

51 A commentator recently raised related concerns regarding the scope of these provisions in the context of relief efforts in Libya: ‘any non-citizens who work for humanitarian agencies – such as my colleagues on our emergency response team from Ireland, Australia, France, and Canada – could be barred from entering or returning to the U.S. for providing “material support” to a “terrorist group”. Even U.S. citizens could face prosecution on these grounds’. Anne Richards, ‘On the Libyan border: helping freedom fighters or terrorists?’, The Hill's Congress Blog, 28 March 2011, available at: http://thehill.com/blogs/congress-blog/foreign-policy/152143-on-the-libyan-border-helping-freedom-fighters-or-terrorists (last visited 4 December 2011).

52 Immigration and Nationality Act, para. 212(a)(3)(B)(iv); 8 U.S.C. para. 1182(a)(3)(B)(iv). See generally Michael John Garcia and Ruth Ellen Wasem, Immigration: Terrorist Grounds for Exclusion and Removal of Aliens, Congressional Research Service, 12 January 2010, available at: http://www.fas.org/sgp/crs/homesec/RL32564.pdf (last visited 4 December 2011).

53 See, e.g., Schulman, Steven H., ‘Victimized twice: asylum seekers and the material-support bar’, in Catholic University Law Review, Vol. 59, No. 4, 2009–2010, p. 949Google Scholar; Human Rights First, Denial and Delay: The Impact of the Immigration Law's “Terrorism Bars” on Asylum Seekers and Refugees in the United States, November 2009, available at: http://www.humanrightsfirst.org/wp-content/uploads/pdf/RPP-DenialandDelay-FULL-111009-web.pdf (last visited 4 December 2011).

54 Statement issued by USAID to the Congressional Research Service on 5 February 2009. Zanotti, Jim, U.S. Foreign Aid to the Palestinians, Congressional Research Service, 13 January 2011, p. 7Google Scholar, available at: http://www.fas.org/sgp/crs/mideast/RS22967.pdf (last visited 24 January 2012).

55 USAID, ‘AAPD 04–14: Certification regarding Terrorist Financing Implement E.O. 13224 (Revision 2)’, Acquisition & Assistance Policy Directive, 24 September 2004, p. 3, available at: http://www.usaid.gov/business/business_opportunities/cib/pdf/aapd04_14.pdf (last visited 4 December 2011).

56 Ibid., p. 4.

57 Testimony of Dr Rajiv Shah, USAID Administrator, Senate Appropriations Subcommittee, 12 April 2010, available at: http://kirk.senate.gov/?p=press_release&id=137 (last visited 4 December 2011).

58 USAID, ‘AAPD 04–14’, above note 55, para. d of the certification.

59 UN Charter, Art. 25. See also UN Charter, Art. 103.

60 UNSC Res. 1267, 15 October 1999; UNSC Res. 1333, 19 December 2000; UNSC Res. 1390, 28 January 2002; UNSC Res. 1455, 17 January 2003; UNSC Res. 1526, 30 January 2004; UNSC Res. 1617, 29 July 2005; UNSC Res. 1735, 22 December 2006; UNSC Res. 1822, 30 June 2008; and UNSC Res. 1904, 17 December 2009.

61 The Consolidated List is available at: http://www.un.org/sc/committees/1267/consolist.shtml (last visited 4 December 2011).

62 UNSC Res. 1373, 28 September 2001, paras. 1(d) and 2(a). UNSC Res. 1456, 20 January 2003; UNSC Res. 1535, 26 March 2004; UNSC Res. 1624, 14 September 2005; UNSC Res. 1787, 10 December 2007; UNSC Res. 1805, 20 March 2008; and UNSC Res. 1963, 20 December 2010.

63 UNSC Res. 1373, paras. 1(b) and 2(e).

64 See generally Tzanakopoulos, Antonios, ‘United Nations sanctions in domestic courts: from interpretation to defiance in Abdelrazik v. Canada’, in Journal of International Criminal Justice, Vol. 8, No. 1, 2010, pp. 249–251CrossRefGoogle Scholar; Terlingen, Yvonne, ‘The United States and the UN's targeted sanctions of suspected terrorists: what role for human rights?’, in Ethics & International Affairs, Vol. 24, No. 2, 2010, pp. 131–142CrossRefGoogle Scholar. The UN Special Rapporteur on Terrorism, Counter-Terrorism and Human Rights has stated that Resolution 1373's ‘continued application nine years later cannot be seen as a proper response to a specific threat to international peace and security. Resolution 1373 (2001) goes beyond the powers conferred upon the Security Council and continues to pose risks to the protection of a number of international human rights standards'. Sixth Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN General Assembly, A/65/258, 6 August 2010, para. 69.

65 Donald Rumsfeld, Transcript, Department of Defense News Briefing, 18 September 2001, available at: http://replay.web.archive.org/20041118041827/http://www.defense.gov/transcripts/2001/t09182001_t0918sda.html (last visited 4 December 2011).

66 UNSC Res. 1916, 19 March 2010, paras. 4, 5, and 11; see also UNSC Res. 1972, 17 March 2011.

67 Global Humanitarian Assistance, ‘United States: country profile’, available at: http://www.globalhumanitarianassistance.org/countryprofile/united-states (last visited 4 December 2011): ‘The United States is the largest humanitarian donor, providing over US$4 billion in humanitarian aid in both 2008 and 2009. Sudan has been the top recipient of the United States’ humanitarian aid each year since 2004, receiving US$674 million in 2008. The United States provides the majority of its humanitarian aid as food aid – over US$2 billion in 2008, the largest single share of which (US$538 million) went to Ethiopia. The United States provides a relatively high share of its overall aid budget in the form of humanitarian assistance – over 16% in 2008.’

68 18 U.S.C. para. 2339B(a)(1): ‘Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life.’

69 See, e.g., Robert Burns, ‘Envoy laments weak US knowledge about Taliban’, Associated Press, 7 April 2009, available at: http://seattletimes.nwsource.com/html/nationworld/2008961176_apusafghanistan.html (last visited 24 January 2012): ‘[Richard] Holbrooke said the U.S. would “concentrate on [the information deficit in Afghanistan], partly through the intelligence structure” and partly through private aid groups that provide humanitarian and other services in Afghanistan. He estimated that 90 percent of U.S. knowledge about Afghanistan lies with aid groups.’ See also US Embassy, Islamabad, ‘U.S. troops reach flood relief milestone, deliver 25 million pounds of aid’, United States Central Command, 23 November 2010, available at: http://www.centcom.mil/pakistan-flood/u-s-troops-reach-flood-relief-milestone-deliver-25-million-pounds-of-aid (last visited 4 December 2011), stating that ‘U.S. military aircraft supporting Pakistan's flood relief efforts achieved another humanitarian milestone Sunday, delivering 25 million pounds of relief supplies since Aug. 5, when U.S. military relief flight operations in Pakistan began.’

70 Gettleman, Jeffrey, ‘U.N. officials assail U.S. on limiting Somali aid’, in New York Times, 18 February 2010, p. 8Google Scholar, reporting that in 2009 ‘the American government provided less than half of what it did in 2008 for Somalia aid operations partly because United Nations agencies and private aid groups refused to sign an agreement to police the distribution of aid more closely, contending that it would make deliveries nearly impossible’.

71 Such as the anti-terror certifications, described above in the section on ‘Administrative regulations’.

72 The UN Special Rapporteur on Terrorism, Counter-Terrorism and Human Rights noted during a press conference that there was a feeling within the humanitarian field that Resolution 1267 had a ‘chilling effect’ on humanitarian aid, owing to the risk that charity aid would be identified as indirectly funding terrorist organizations. UN Department of Public Information, ‘Press Conference by Special Rapporteur on Protecting Human Rights While Countering Terrorism’, 26 October 2010, available at: http://www.un.org/News/briefings/docs/2010/101026_Scheinin.doc.htm (last visited 4 December 2011).

73 As mentioned in note 8 above, according to the ICRC offers of humanitarian relief in NIAC may not be regarded as unfriendly acts.

74 See, e.g., Y. Dinstein, above note 5.

75 Common Article 3. See above notes 6 and 8, and the corresponding text.

76 Sandoz et al., above note 6, p. 41.

77 Harvard Program on Humanitarian Policy and Conflict Research, above note 13, pp. 27–37.

78 These are frameworks that allow humanitarian organizations to apply for discrete, context-specific exemptions to criminal or regulatory laws in order to carry out operations in areas where listed groups control territory, or where there is a high likelihood of having to engage with listed NSAGs.