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International humanitarian law and the criminal justice response to terrorism: From the UN Security Council to the national courts

Published online by Cambridge University Press:  08 November 2021

Agathe Sarfati
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Abstract

Since the adoption of the first United Nations Security Council (UNSC) counterterrorism resolution after the 9/11 attacks, the UNSC has increasingly required the domestic criminalization of “terrorism” acts and ancillary activities. Without the inclusion of an explicit international humanitarian law (IHL) or humanitarian exception, the UNSC has – so far – failed to harmonize the counterterrorism legal framework with IHL, leaving it up to States to define the interaction between the two. In their national legislation and courts, States’ interpretations have varied but counterterrorism legislations have been used to adjudicate conducts in armed conflicts, regardless of their legality under IHL. As the domestication of UNSC offences is ongoing, good practices are highlighted in this paper and recommendations are offered to ensure the development of international customary law in accordance with IHL.

Keywords

terrorisminternational humanitarian lawUnited Nations Security Councilcriminal justiceinternational criminal lawuniversal jurisdictionnational courts
Type
Relationship between counterterrorism law and IHL
Information
International Review of the Red Cross , Volume 103 , Issue 916-917: Counterterrorism, sanctions and war , April 2021 , pp. 267 - 293
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of the ICRC

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References

1 Transnational criminal law is defined by Neil Boister as a subset of international criminal law which deals with treaty crimes. Contrary to the core crimes spelled out in the Rome Statute of the International Criminal Court, these “crimes of international concern” with potential transboundary effects are criminalized and prosecuted at the domestic level. Transnational criminal law treaties require States to cooperate in the investigation and prosecution or extradition of suspects under the principle of “extradite or prosecute”. This is the case for the nineteen treaties and conventions, and their protocols, that deal with categories of offences regarded as “terrorist”. See Boister, Neil, “‘Transnational Criminal Law’?”, European Journal of International Law, Vol. 14, No. 5, 2003CrossRefGoogle Scholar.

2 See Boister, Neil, An Introduction to Transnational Criminal Law, 2nd ed., Oxford University Press, Oxford, 2008, p. 115Google Scholar; Martinez, Luis Miguel Hinojosa, “The Legislative Role of the Security Council in Its Fight against Terrorism: Legal, Political and Practical Limits”, International and Comparative Law Quarterly, Vol. 57, No. 2, 2008Google Scholar. Some authors stress the challenge that this role raises for the multilateral approach to criminal justice and treaty-making processes: see, for example, White, Nigel D., “The United Nations and Counter-Terrorism”, in de Frias, Ana Marià Salinas, Samuel, Katja and White, Nigel D. (eds), Counter-Terrorism: International Law and Practice, Oxford University Press, New York, 2012, p. 81Google Scholar; Titilopemi Ogunlade, “The UN Security Council as Legislator: A Critical Analysis”, master's thesis, Université de Genève Maîtrise, 2014.

3 See United Nations (UN), “Security Council Al-Qaida Sanction Committee Adds Boko Haram to Its Sanction List”, Press Release SC/11410, 22 May 2014, available at: www.un.org/press/en/2014/sc11410.doc.htm (all internet references were accessed in October 2021).

4 Initially known as the 1267 UN sanctions regime, two separate sanctions regimes finally emerged in 2011, as per UNSC Res. 1988 and UNSC Res. 1989, 17 June 2011. The first deals with the Taliban and the second concerns ISIL, Al-Qaeda and associated individuals, groups, undertakings and entities. In June 2021, the ISIL and Al-Qaeda sanctions regime, pursuant to UNSC Res. 1257, 1989, 2253 and 2368, comprised targeted sanctions measures – an arms embargo, a travel ban and an asset freeze – against 261 individuals and eighty-nine entities listed on the ISIL and Al-Qaeda sanctions list.

5 Including Jelena Pejic, “Armed Conflict and Terrorism: There Is a (Big) Difference”, in A. M. Salinas de Frias, K. Samuel and N. D. White (eds), above note 2; Tristan Ferraro, “Interaction and Overlap between Counter-Terrorism Legislation and International Humanitarian Law”, Proceedings of the 17th Bruges Colloquium, 2016; Alice Debarre, Safeguarding Medical Care and Humanitarian Action in the UN Counterterrorism Framework, International Peace Institute, New York, September 2018; Modirzadeh, Naz K., Lewis, Dustin A. and Bruderlein, Claude, “Humanitarian Engagement under Counter-Terrorism: A Conflict of Norms and the Emerging Policy Landscape”, International Review of the Red Cross, Vol. 93, No. 833, 2011CrossRefGoogle Scholar.

6 See ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, 2019, pp. 57–65; College of Europe and ICRC, “Terrorism, Counter-Terrorism and International Humanitarian Law”, Proceedings of the 17th Bruges Colloquium, 20–21 October 2016.

7 These measures include the international legal framework (comprised of nineteen treaties and conventions, and their protocols) and domestic criminal laws addressing terrorism.

8 If acts of violence committed by “terrorist” groups are isolated and do not lead to an armed confrontation which passes the threshold of intensity required, the situation would not amount to a non-international armed conflict (NIAC) and IHL would not apply. However, if acts of violence committed by a terrorist group which meets the command-and-control structure criteria pass a threshold of intensity, the situation could escalate to an armed conflict. See ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd ed., Geneva, 2016, paras 432–438, 867, available at: https://tinyurl.com/23cfhnh6; International Criminal Tribunal for the former Yugoslavia (ICTY), The Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995, para. 70; ICTY, The Prosecutor v Duško Tadić, Case No. IT-94-1-T, Judgment (Trial Chamber), 7 May 1997, para. 562.

9 J. Pejic, above note 5.

10 Saul, Ben, Defining Terrorism in International Law, Oxford Scholarship Online, New York, 2010, p. 50Google Scholar.

11 The Chapter VII UNSC Resolutions on “threats to international peace and security caused by terrorist acts” are: UNSC Res. 1373, 28 September 2001; UNSC Res. 1452, 20 December 2002; UNSC Res. 1455, 17 January 2003; UNSC Res. 1526, 20 January 2004; UNSC Res. 1535, 26 March 2004; UNSC Res. 1566, 8 October 2004; UNSC Res. 1617, 29 July 2005; UNSC Res. 1735, 22 December 2006; UNSC Res. 1822, 30 June 2008; UNSC Res.1904, 17 December 2009; UNSC Res. 1988, 17 June 2011; UNSC Res. 1989, 17 June 2011; UNSC Res. 2082, 17 December 2012; UNSC Res. 2083, 17 December 2012; UNSC Res. 2160, 17 June 2014; UNSC Res. 2161, 17 June 2014; UNSC Res. 2170, 15 August 2014; UNSC Res. 2178, 24 September 2014; UNSC Res. 2199, 12 February 2015; UNSC Res. 2253, 17 December 2015; UNSC Res. 2396, 21 December 2017; UNSC Res. 2462, 28 March 2019.

12 See above note 4.

13 UNSC Res. 1373, 28 September 2001.

14 UNSC Res. 2178, 24 September 2014.

15 UNSC Res. 2396, 21 December 2017.

16 UNSC Res. 2462, 28 March 2019.

17 See, for instance, L. M. Hinojosa Martinez, above note 2. Some authors stress the challenge such a role has raised for the “criminal justice multilateral approach” to law-making processes, including treaty negotiations and voluntary ratification. See, for example, N. D. White, above note 2, p. 81; T. Ogunlade, above note 2.

18 UNSC, Technical Guide to the Implementation of Security Council Resolution 1373 (2001) and Other Relevant Resolutions, UN Doc. S/2019/998, 21 December 2019, p. 6.

19 UNSC Res. 1373, 28 September 2001.

20 Ibid., op. para. 1(b).

21 Ibid., op. para. 2(e). This is also reiterated in UNSC Res. 2178, 24 September 2014, op. para. 6; UNSC Res. 2396, 21 December 2017, op. para. 17; and UNSC Res. 2462, 28 March 2019, op. para. 2.

22 UNSC Res. 2178, 24 September 2014, op. para. 6.

23 Ibid., op. para. 6(a).

24 UNSC Res. 2396, 21 December 2017.

25 Ibid., op. paras 29–41.

26 UNSC Res. 2462, 28 March 2019.

27 Ibid., op. para. 2.

28 Ibid., op. para. 5.

29 Through UNSC Res. 1373, 28 September 2001, op. para. 6, the UNSC created the CTC “to monitor implementation of this resolution” and called on States to report to the Committee on “steps they have taken to implement this resolution”.

30 The UNSC established CTED through the adoption of UNSC Res. 1535, 26 March 2004.

31 See CTED, Madrid Guiding Principles: A Practical Tool for Member States to Stem the Flow of Foreign Terrorist Fighters, UN Doc. S/2015/939, 23 December 2015 (Madrid Guiding Principles); CTED, 2018 Addendum to the Madrid Guiding Principles, 2018; UNSC, above note 18.

32 Note that a fair amount of conceptual uncertainty remains regarding the difference, if any, between the term “humanitarian exemption” and the terms “humanitarian exception” and “humanitarian carve-out”, and their relationship with the more generic concept of “humanitarian safeguards”. Regarding the lack of consistency in the use of these terms and the implications that this has had, see the contribution by Sue Eckert and the interview with Alena Douhan in this issue of the Review.

33 UNSC Res. 1373, 28 September 2001. op. para. 2(a).

34 UNSC Res. 2462, 28 March 2019, op. para. 5.

35 UNSC Res. 1373, 28 September 2001, op. para. 2(e); UNSC Res. 2178, 24 September 2014, op. para. 6; UNSC Res. 2396, 21 December 2017, op. paras 17, 23, 30; UNSC Res. 2462, 28 March 2019, preambular para. 4.

36 Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rule 55, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1.

37 In 2004, the UNSC adopted UNSC Res. 1566, which provided a working definition of terrorism. It “defined terrorism as serious (sectoral) criminal violence intended to provoke a state of terror, intimidate a population or compel a government or organization”. This resolution, however, was not adopted under Chapter VII of the UN Charter and is not binding on States. See Saul, Ben, “Definition of ‘Terrorism’ in the UN Security Council: 1985–2004”, Chinese Journal of International Law, Vol. 4, No. 1, 2005CrossRefGoogle Scholar.

38 See B. Saul, above note 10, p. 48; B. Saul, above note 37, p. 159.

39 See T. Ferraro, above note 5, p. 29.

40 Cuyckens, Hanne and Paulussen, Christophe, “The Prosecution of Foreign Fighters in Western Europe: The Difficult Relationship between Counter-Terrorism and International Humanitarian Law”, Journal of Conflict and Security Law, Vol. 24, No. 3, 2019, p. 11Google Scholar.

41 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, 31 October 2011, pp. 48–51, available at: www.icrc.org/en/doc/resources/documents/report/31-international-conference-ihl-challenges-report-2011-10-31.htm.

42 Preambular paragraph 10 of UNSC Res. 2178 defines foreign terrorist fighters as “individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict”. Operative paragraph 1 of UNSC Res. 2178 also refers to the participation of foreign terrorist fighters in “armed conflict”.

43 See Krähenmann, Sandra, “Foreign Fighters, Terrorism and Counter-Terrorism”, in Saul, Ben (ed.), Research Handbook on International Law and Terrorism, 2nd ed., Edward Elgar, Cheltenham, 2020Google Scholar.

44 In an international armed conflict, the status of combatant confers immunity and privileges to members of armed forces against prosecution for participation in hostilities. Such a status does not exist in NIACs, and members of NSAGs or civilians may be prosecuted under domestic law for their mere participation in hostilities. See Tristan Ferraro, above note 5, p. 29; ICRC, “Immunities”, How Does Law Protect in War?, available at: https://casebook.icrc.org/glossary/immunities.

45 See Stéphane Ojeda, “Out of Balance: Global Counter-Terrorism and the Laws of War”, Humanitarian Law and Policy Blog, 15 September 2017, available at: https://blogs.icrc.org/law-and-policy/2017/09/15/out-of-balance-global-counter-terrorism-the-laws-of-war/.

46 Protocol Additional (II) to the Geneva Conventions of 1949, and relating to the Protection of Victims of Non-International Armed Conflict, 8 June 1977 (entry into force 7 December 1978), Art. 6(5): “At the end of hostilities, the authorities shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict”; ICRC Customary Law Study, above note 36, Rule 159. Also see the example of the Special Jurisdiction for Peace in Colombia, which has the mandate to grant amnesty to Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, FARC) ex-combatants who have not been charged with grave crimes. See Colombia, Law No. 1820 Providing for Amnesty, Pardon and Special Criminal Treatment Provisions and Other Provisions, 30 December 2016.

47 UNSC Res. 2178, 24 September 2014, op. para. 6; UNSC Res. 2396, 21 December 2017, op. para. 17.

48 ICRC Customary Law Study, above note 36, Rule 158.

49 Fionnuala Ní Aoláin, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, UN Doc. A/75/337, 3 September 2020.

50 Ali Altiok and Jordan Street, “A Fourth Pillar for the United Nations: The Rise of Counter-Terrorism”, Saferworld, June 2020.

51 Conversely, see the example of the Special Jurisdiction for Peace in Colombia, which has jurisdiction over war crimes and is part of the transitional justice component of the 2016 Peace Agreement between the government of Colombia and the FARC. See Gwen Burnyeat, Par Engstrom, Andrei Gomez Suarez and Jenny Pearce, “Justice after War: Innovations and Challenges for Colombia's Special Jurisdiction for Peace”, London School of Economics Blog, 3 April 2020 available at: https://blogs.lse.ac.uk/latamcaribbean/2020/04/03/justice-after-war-innovations-and-challenges-of-colombias-special-jurisdiction-for-peace/.

52 UNSC Res. 2396, 21 December2017, op. para. 18.

53 For the conceptual uncertainty surrounding the use of these terms, see above note 32.

54 Starting with UNSC Res. 1535, 26 March 2004, preambular para. 4.

55 See, for instance, UNSC Res. 2178, 24 September 2014, preambular para. 7; UNSC Res. 2396, 21 December 2017, preambular para. 7; UNSC Res. 2368, 20 July 2017, preambular para. 11.

56 Note that this is not the first time IHL is mentioned in an operative paragraph. For example, operative paragraph 5 of UNSC Res. 2178 provides that “Member States shall, consistent with … international humanitarian law, prevent and suppress the recruiting, organizing, transporting or equipping of” foreign terrorist fighters.

57 Emphasis added. Note that UNSC Res. 2482, 19 July 2019, contains in operative paragraph 16 broader language targeting all “counter-terrorism measures” and not only “measures to counter the financing of terrorism”. This resolution was not adopted under Chapter VII of the UN Charter, however. The same provision was part of a draft Chapter VII UNSC resolution (UN Doc. S/2020/852) that failed to be adopted in August 2020. Operative paragraph 13 of the draft resolution read: “[The UNSC] [u]rges Member States to ensure that all measures taken to counter terrorism comply with their obligations under international law, including humanitarian law, international human rights law and international refugee law, and urges States to take into account the potential effects of counterterrorism measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law.”

58 For some background on the negotiation of UNSC Res. 2462, see UNSC, “What's in Blue: Combatting Financing of Terrorism Open Debate”, Security Council Report, 27 March 2019, available at: www.securitycouncilreport.org/whatsinblue/2019/03/combatting-financing-of-terrorism-open-debate.php.

59 Some legal experts have argued that although they are not as prescriptive as an exception, taken together these three legally binding provisions (operative paragraphs 5, 6 and 24) could ensure that humanitarian activities are safeguarded and not impeded. See Nathalie Weizmann, “Painting Within the Lines: The UN's Newest Resolution Criminalizing Financing for Terrorists – Without Imperiling Humanitarian Activities”, Just Security, 29 March 2019, available at: www.justsecurity.org/63442/painting-within-the-lines-the-uns-newest-resolution-criminalizing-financing-for-terrorists-without-imperiling-humanitarian-activities/; ICRC, “ICRC Submission: Call for Input – UN Special Rapporteur on Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism (CT) – Thematic Report to the 75th Session of the UN General Assembly”, available at: www.ohchr.org/Documents/Issues/Terrorism/SR/GA75/ICRC-GA75CT.docx.

60 UNSC Res. 2462, 28 March 2019, op. para. 24.

61 Switzerland, Amendment of Art. 260ter(2) of Penal Code, Federal Decree of 25 September 2020, available at: www.parlament.ch/centers/eparl/curia/2018/20180071/Texte%20pour%20le%20vote%20final%201%20SN%20F.pdf.

62 Philippines, Republic Act No. 11479, 3 July 2020, Section 13, available at: www.officialgazette.gov.ph/downloads/2020/06jun/20200703-RA-11479-RRD.pdf.

63 UNSC, Joint Report of the Counter-Terrorism Committee Executive Directorate and the Analytical Support and Sanction Monitoring Team Pursuant to Resolution 1526 (2004) and 2253 (2015), UN Doc S/2020/493, 3 June 2020, p. 24.

64 Ibid.

65 See UNSC, above note 18, in particular pp. 10, 144–145.

66 Ibid., p. 10.

67 Dustin A. Lewis, Naz K. Modirzadeh and Jessica Burniske, The Counter-Terrorism Committee Executive Directorate and International Humanitarian Law: Preliminary Considerations for States, legal briefing, Harvard Law School Program on International Law and Armed Conflict, March 2020, p. 21; United Nations Office on Drugs and Crime, “Defining Terrorism”, available at: www.unodc.org/e4j/en/terrorism/module-4/key-issues/defining-terrorism.html.

68 See statements of member States during the teleconference on “Threats to International Peace and Security Caused by Terrorist Acts: International Cooperation in Combating Terrorism 20 Years after the Adoption of Resolution 1373 (2001)”, 12 January 2021; UNSC, Letter Dated 14 January 2021 from the President of the Security Council Addressed to the Secretary-General and the Permanent Representatives of the Members of the Security Council, UN Doc. S/2021/48, 15 January 2021, available at: https://undocs.org/en/S/2021/48.

69 Émilie Max, Room for Manoeuvre? Promoting International Humanitarian Law and Accountability while at the United Nations Security Council: A Reflection on The role of Elected Members, Academy Briefing No. 17, Geneva Academy, October 2020, available at: www.geneva-academy.ch/joomlatools-files/docman-files/Briefing%2017.pdf.

70 See Marc Porret, “The Role of the United Nations Global Counter-Terrorism Compact Task Force, the UN Office of Counter-Terrorism and Its Counter-Terrorism Centre”, in B. Saul (ed.), above note 43.

71 See Law Library of Congress, “Treatment of Foreign Fighters in Selected Jurisdictions”, December 2014, available at: https://tile.loc.gov/storage-services/service/ll/llglrd/2014504233/2014504233.pdf; Center for Strategic and International Studies, Aligning Security with Civic Space: Database of Legislation on the Definition of Terrorism, February 2018, available at: https://tinyurl.com/44nvxmyn. Examples of anti-terror legislative framework include: Thailand, Criminal Code, Sections 135/1-135/4; Malaysia, Penal Code, Chap. VI; France, Criminal Code of the French Republic, Art. 421-1; United States, United States Code, Title18, Part 1, Chap. 113b. Examples of dedicated anti-terror act include: in Malaysia, the Anti-Money Laundering and Anti-Terrorism Financing Act (2008) and Special Measures Against Terrorism in Foreign Countries Act (2015); in Singapore, the Internal Security Act (1960), Terrorism (Suppression of Financing) Act (2002), Prevention of Money Laundering and Terrorism Financing Act (2019), Terrorism (Suppression of Misuse of Radioactive Material) Act (2017) and Terrorism (Suppression of Bombings) Act (2007); in Afghanistan, the Law on Combat against Terrorism Offences (2008); and in the United States, the Patriot Act (2001).

72 Human Rights Watch, In the Name of Security: Counterterrorism Laws Worldwide Since September 11, 29 June 2012, available at: www.refworld.org/docid/4ff6bd302.html.

73 See S. Krähenmann, above note 43; Human Rights Watch, “Foreign Terrorist Fighter” Laws, December 2016, available at: www.hrw.org/sites/default/files/news_attachments/ftf_essay_03feb2017_final_pdf.pdf .

74 Australia, Counter-Terrorism Legislation Amendment (Foreign Fighters) Act, No. 116, 2014, available at: www.legislation.gov.au/Details/C2014A00116.

75 Indonesia, Counterterrorism Law, 2003, Amended by Law No. 5, 2018.

76 Philippines, Republic Act No. 11479, above note 62, Section 13.

77 See Permanent Mission of the Republic of the Philippines to the UN and Other International Organizations in Geneva, Response from the Government on JOL PHL 4/2020 Dated 29 June 2020 Concerning the Anti-Terror Act, Doc. NV-EPG-331-2020, 27 August 2020, available at: https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=35537.

78 It should be noted, however, that different factors play out in domestication of offences by States, including their international and regional obligations. Further, various factors influence domestic legal proceedings vis-à-vis IHL, including national legal frameworks (whether they have jurisdiction over international crimes such as war crimes and/or terrorism offences), national legal traditions (whether courts can assess a conduct under both IHL and domestic counterterrorism legislation), and procedural barriers (including availability of and access to evidence).

79 UNSC Res. 2396, 21 December 2017, op. para. 18.

80 ICRC Customary Law Study, above note 36, Rule 158.

81 UNSC Res. 2396, 21 December 2017, op. para. 19.

82 Except in countries where “membership” of a terrorist organization is not a criminal offence, such as Sweden (because “membership” and “support” have been the main types of terrorist-related indictments), and in cases of dual legal qualification where the terrorist offence could not be established. See, for instance, German Higher Regional Court of Frankfurt am Main, Prosecutor v. Aria L, Case No. 5-3 StE 2/16-4-1/16, Judgment, 12 July 2016; International Criminal Database, “Prosecutor v. Aria Ladjedvardi”, available at: www.internationalcrimesdatabase.org/Case/3276; District Court of The Hague, Prosecutor v. Ahmad al Khedr, Case No. 09/748001-18, 16 July 2021, available at: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2021:7533.

83 Genocide Network and Eurojust, Cumulative Prosecution of Foreign Terrorist Fighters for Core International Crimes and Terrorism-Related Offences, The Hague, May 2020, p. 16, available at: https://tinyurl.com/pj26n2s7.

84 See International Covenant on Civil and Political Rights, 16 December 1966, Art. 14(7); Optional Protocol No. 7 of the European Convention on Human Rights, 22 November 1984, Art. 4.

85 Council of the European Union, Presidency Discussion Paper on Aspects of Terrorism, WK 12157/2929 INIT, 23 November 2020, p. 6, available at: https://tinyurl.com/jyjx46ae.

86 CTED, Analytical Brief: The Prosecution of ISIL-Associated Women, 2020, available at: www.un.org/securitycouncil/ctc/content/cted-analytical-brief-%E2%80%93-prosecution-isil-associated-women.

87 Ibid.

88 “According to section 129a paragraph 1 number 1 of the German Criminal Code a terrorist organization is a firmly organized group of persons who inter alia intend to commit international crimes defined by the Germany International Crimes Code, including war crimes.” Christian Ritscher, “Panel Discussion: State Response to Foreign Fighters”, Proceedings of the 17th Bruges Colloquium, 2016, p. 128.

89 Genocide Network and Eurojust, above note 83, p. 16.

90 District Court of The Hague, Prosecutor v. Oussama A, Case No. 09/748003-18V and 09/748003-19, Verdict, 23 July 2019, available at: www.eurojust.europa.eu/sites/default/files/2020-09/2019-07-23_NL-Rechtbank-Den-Haag_Case09-748003-18V_3.pdf.

91 German Higher Regional Court of Frankfurt am Main, Prosecutor v. Abdelkarim EL B, Case No. 5-3 StE 4/16-4-3/16, Judgment, 8 November 2016.

92 In both cases, these courts have determined that the body of a dead soldier can be regarded as a “protected person” under IHL, referring to existing judgments including the Brdanin case at the ICTY, Rule 113 of the ICRC Customary Law Study, and the International Criminal Court's Elements of Crimes. This has enabled the courts to convict the defendants for the war crime of “humiliating and degrading treatment of a protected person” under Article 3 common to the four Geneva Conventions, based on pictures or video extracted from mobile phones, or found on social media, of the defendants posing with or recording the mutilation of dead soldiers’ bodies. See C. Ritscher, above note 88, p. 128.

93 As defined in the German Code of Crimes against International Law, 30 June 2002, Section 8(6)(3).

94 Stefan Talmon and Tobias Wiass, “Sentencing a Member of the Syrian Opposition for War Crimes against Persons”, German Practice in International Law, March 2020, available at: https://gpil.jura.uni-bonn.de/2020/03/sentencing-a-member-of-the-syrian-opposition-for-war-crimes-against-persons/.

95 TRIAL International, Universal Jurisdiction Annual Review 2021, 12 April 2021, p. 37, available at: https://trialinternational.org/wp-content/uploads/2021/04/TRIAL_International_UJAR-2021.pdf.

96 Government of France, “Le parquet national anti-terroriste est créé”, 1 July 2019, available at: www.gouvernement.fr/le-parquet-national-anti-terroriste-est-cree.

97 See Crown Prosecution Service, “Special Crime and Counter Terrorism Division (SCCTD)”, available at: www.cps.gov.uk/special-crime-and-counter-terrorism-division-scctd.

98 See: www.generalbundesanwalt.de/EN/Home/home_node.html.

99 See, for instance, Julia Crawford, “International Crimes: Spotlight on Switzerland's War Crimes Unit”, Justiceinfo.net, 15 February 2019, available at: www.justiceinfo.net/en/40328-international-crimes-spotlight-on-switzerland-s-war-crimes-unit.html.

100 There is a challenge to collecting sufficient evidence from areas of armed conflict, or battlefield evidence, in order to secure convictions for war crimes and terrorism offences alike. See, for example, the case of the two Iraqi twin brothers in Finland who were suspected of being involved in the ISIL massacre of Iraqi soldiers and cadets at Camp Speicher in Tikrit, Iraq, and who were finally acquitted by the Court of Appeal “on the ground that there was not sufficient evidence for a conviction”: TRIAL International, above note 95. Some cases of cumulative charging point to the use of innovative endeavours, including the initiation of partnerships with UN entities, in order to gather sufficient evidence. Certain UN entities, including the International, Impartial and Independent Mechanism related to Syria (IIIM) and the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da'esh/ISIL (UNITAD), have supported States in the collection of evidence and in their domestic proceedings. UNITAD, which has been mandated by the UNSC to support domestic proceedings in Iraq and in third States, has notably cooperated with the Finnish authorities in facilitating the hearing of eight witnesses’ testimonies for the case on appeal related to the Camp Speicher massacre. To overcome the challenge pertaining to the lack of access to evidence, several guidelines have been developed, including Geneva Academy and ICRC, Guidelines on Investigating Violations of International Humanitarian Law, September 2019; CTED, Guidelines to Facilitate the Use and Accessibility as Evidence in National Criminal Courts of Information Collected, Handled, Preserved and Shared by the Military to Prosecute Terrorist Offences, December 2019.

101 Law Library of Congress, “Genocides, Crimes against Humanity and War Crimes Jurisdiction”, November 2016, available at: https://tile.loc.gov/storage-services/service/ll/llglrd/2016590022/2016590022.pdf.

102 Ibid. Also see UN Assistance Mission for Iraq and Office of the UN High Commissioner for Human Rights, Human Rights in the Administration of Justice in Iraq: Trials under the Anti-Terrorism Law and Implications for Justice, Accountability and Social Cohesion in the Aftermath of ISIL, January 2020.

103 Martin Chulov, “British Jihadi Aine Davis Convicted in Turkey on Terror Charges”, The Guardian, 9 May 2017, available at: www.theguardian.com/world/2017/may/09/british-jihadist-aine-davis-convicted-in-turkey-on-terror-charges .

104 Note, however, that “the [Iraqi] Council of Representatives continues to consider legislation to establish a legal basis for the prosecution of ISIL members in Iraq for war crimes, crimes against humanity and genocide”. See Sixth Report of the Special Adviser and Head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da'esh/Islamic State in Iraq and the Levant, UN Doc. S/2021/419, 3 May 2021, available at: www.unitad.un.org/sites/www.unitad.un.org/files/general/s.2021.419_-_sixth_unitad_report_en.pdf.

105 In regard to France, see Sharon Weill, “French Foreign Fighters: The Engagement of Administrative and Criminal Justice in France”, International Review of the Red Cross, Vol. 100, No. 907–909, available at: https://international-review.icrc.org/sites/default/files/reviews-pdf/2019-10/100_12.pdf. In regard to the United States, see Karen J. Greenberg (ed.), The American Exception: Terrorism Prosecutions in the United States: The ISIS Cases, Center on National Security, 2017, available at: https://news.law.fordham.edu/wp-content/uploads/2017/09/TheAmericanException9-17.pdf.

106 France, Criminal Code of the French Republic, Art. 421-2-1l.

107 Ibid., Art. 223

108 S. Weill, above note 105, p. 223.

109 French Court of Cassation, Decision No. 16-82.692 (Criminal Chamber), 12 July 2016, cited in Weill, Sharon, “Transnational Jihadism and the Role of Criminal Judges: An Ethnography of French Courts”, Journal of Law and Society, Vol. 47, No. S1, 2020, p. 39CrossRefGoogle Scholar.

110 TRIAL International, Universal Jurisdiction Annual Review 2020, 2020, p. 11, available at: https://trialinternational.org/wp-content/uploads/2020/03/TRIAL-International_UJAR-2020_DIGITAL.pdf. See also S. Weill, above note 119, p. 39. The latter article highlights that the case of Mounir Diawara and Rodrigue Quenum is important because of the jurisprudence it produced wherein the Court of Cassation ruled that “membership of a group whose purpose is the preparation of felonies can be classified as an [association of wrongdoers in relation to a terrorist enterprise] in the form of a felony, without the need to demonstrate any effective participation in the execution of the crimes or their preparation”.

111 See above notes 90, 91 and 92.

112 TRIAL International, above note 95.

113 Beth Van Schaack, “National Courts Step Up: Syrian Cases Proceeding in Domestic Courts”, February 2019, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3327676; K. J. Greenberg (ed.), above note 105.

114 District Court for the Eastern District of Virginia, United States of America v. Alexanda Amon Kotey and El Shafee Elsheikh, Criminal No. 1:20-Cr-239, Indictment, 6 October 2020, available at: www.justice.gov/opa/press-release/file/1325721/download. Also see Beth Van Schaack and Julia Brooks, “‘With a Little Help from Our Friends’: Prosecuting the ISIL ‘Beatles’ in U.S. Courts”, Just Security, 22 October 2019, available at: www.justsecurity.org/66653/with-a-little-help-from-our-friends-prosecuting-the-isil-beatles-in-u-s-courts/.

115 Human Rights Watch, If You Are Afraid for Your Lives, Leave Sinai! Egyptian Security Forces and ISIS-Affiliate Abuses in North Sinai, 28 May 2019, available at: www.hrw.org/report/2019/05/28/if-you-are-afraid-your-lives-leave-sinai/egyptian-security-forces-and-isis.

116 Samy Magdy, “Egypt Sentences 37 to Death Including Top Militant Leader”, AP News, 2 March 2020.

117 Human Rights Watch, Nigeria: Flawed Trials of Boko Haram Suspects, 17 September 2018, available at: www.hrw.org/news/2018/09/17/nigeria-flawed-trials-boko-haram-suspects.

118 Contrary to States where “support” or “membership” is a rather easy offence or felony to substantiate, such as France and the United States, in some countries, such as Thailand, the “intent” to commit a terrorist offence has to be proven in order to indict an individual on charges of terrorism. This is much more challenging to substantiate and often results in the prosecution of terrorist offences as general criminal offences. In these cases, the UN recommends that member States swiftly update their national legislation to be in line with UNSC Resolutions 2178 and 2396 in order to ensure jurisdiction over the full range of conducts relating to “foreign terrorist fighters”, including preparatory acts and inchoate offences. See Madrid Guiding Principles, above note 31, Guiding Principle 22.

119 See, for example, United States Code, Title 18, Sections 2339A, 2339B; Supreme Court of the United States, Holder v. Humanitarian Law Project, Case No. 08-1498, 2010.

120 See, for example, Kingdom of Saudi Arabia, Law on Countering the Financing of Terrorism, Art. 38; US Court of Appeal (Second Circuit), United States v. Farhane, 634 F.3d 127, 4 February 2011.

121 UK Counter-Terrorism and Border Security Act, 2019, Chap. 1, Section 4; Australia, Criminal Code Act, No. 12, 1995, Part 5.3, Section 119.2 on entering or remaining in declared areas, available at: www.legislation.gov.au/Details/C2019C00043/Html/Volume_1 (both laws are subject to a number of exceptions, including providing aid of a humanitarian nature). A similar amendment is currently being discussed in the Netherlands by the Senate. For more on the latter, see Christopher Paulussen and Emanuela-Chiara Gillard, Staying in an Area Controlled by a Terrorist Organization: Crime or Operational Necessity?, International Center for Counter-Terrorism, 11 January 2021, available at: https://icct.nl/publication/staying-in-an-area-controlled-by-a-terrorist-organisation-crime-or-operational-necessity/.

122 Marine Buissonière, Sarah Woznick and Leonard Rubinstein, The Criminalization of Healthcare, Safeguarding Health in Conflict, June 2018, p. 19.

123 Dustin A. Lewis, Naz. K. Modirzadeh and Gabriella Blum, Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism, Harvard Law School Program on International Law and Armed Conflict, September 2015; M. Buissonière, S. Woznick and L. Rubinstein, above note 122.

124 Supreme Court of Justice of Colombia (Criminal Cassation Chamber), Case No. 27227, 21 May 2009.

125 M. Buissonière, S. Woznick and L. Rubinstein, above note 122, p. 15.

126 Ibid.

127 Supreme Court of Justice of Colombia, above note 124, p. 12, cited in D. A. Lewis, N. K. Modirzadeh and G. Blum, above note 123, p. 116, and Linares, Ekateria Ortiz and Chau, Marisela Silva, “Reflections on the Colombian Case Law on the Protection of Medical Personnel against Punishment”, International Review of the Red Cross, Vol. 95, No. 890, 2013, p. 263Google Scholar.

128 E. O. Linares and M. S. Chau, above note 127, p. 263.

129 Including District Court of New York, U.S. v. Shah, 474 F.Supp.2d 492, 30 January 2007; District Court of Minnesota, US v. Warsame, 651 F.Supp.2d 978 (2009), 24 August 2009; US Court of Appeals (Second Circuit), United States v. Farhane, 634 F.3d 127, 4 February 2011.

130 United States Code, Title 18, Sections 2339A, 2339B.

131 D. A. Lewis, N. K. Modirzadeh and G. Blum, above note 123, p. 135.

132 United States Code, Title 18, Section 2339A(b)(3), cited in D. A. Lewis, N. K. Modirzadeh and G. Blum, above note 123, pp. 123–137.

133 M. Buissonière, S. Woznick and L. Rubinstein, above note 122, p. 21, citing District Court of New York, U.S. v. Shah, 474 F.Supp.2d 492, 30 January 2007.

134 M. Buissonière, S. Woznick and L. Rubinstein, above note122, pp. 19–22.

135 Switzerland, above note 61.

136 UK Counter-Terrorism and Border Security Act, 2019, Chap. 1, Section 4(5)(a).

137 European Commission, Report from the Commission to the European Parliament and Council Based on Article 29(1) of Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on Combating Terrorism and Replacing Council Framework Decision 20002/475/JHA and Amending Council Decision 2005/671/JHA, COM(2020) 619 Final, Brussels, 30 September 2020, available at: https://perma.cc/FAW7-ABQM.

138 Australia, Criminal Code Act, above note 121, Part 5.3, including Section 83.3 on military-style training involving a foreign government principal, Section 119.2 on entering, or remaining in declared areas, and Section 119.5 on allowing use of buildings, vessels and aircraft to commit offences.

139 New Zealand, Terrorist Suppression Act, 2002, Section 10, available at: www.legislation.govt.nz/act/public/2002/0034/latest/whole.html.

140 Philippines, Republic Act No. 11479, above note 62, Section 13.

141 ICRC, above note 59.

142 See T. Ferraro, above note 5, p. 29.

143 See above note 44.

144 New Zealand, Terrorist Suppression Act, above note 139, Art. 19.

145 European Commission, above note 137.

146 Belgian Criminal Code, 8 June 1867, as modified by the Law on Terrorist Crimes, 19 December 2003.

147 See, for instance, District Court of the Hague, Prosecutor v. Imane B et al., Case No. 09/842489-14, 10 December 2015, para. 7.36.

148 See Thomas Von Poecke, “The IHL Exclusion Clause, and Why Belgian Courts Refuse to Convict PKK Members for Terrorist Offences”, EJIL: Talk!, 20 March 2019, available at: www.ejiltalk.org/the-ihl-exclusion-clause-and-why-belgian-courts-refuse-to-convict-pkk-members-for-terrorist-offences/. See also the article by Thomas Van Poecke, Frank Verbruggen and Ward Yperman in this issue of the Review.

149 Ibid.

150 On this see H. Cuyckens and C. Paulussen, above note 40.

151 UK Court of Appeal, Regina v. Mohammed Gul, Case No. 2011/01697/C5, Judgment, 22 February 2012.

152 ICRC, “Regina v. Mohammed Gul, Court of Appeal, 22 February 2012”, National Implementation of IHL, available at: https://tinyurl.com/cx9v3734.

153 District Court of the Hague, Imane B, above note 147.

154 N. Boister, above note 1, p. 119.

155 District Court of the Hague, Imane B, above note 147, para. 7.17.

156 Ibid., para. 7.29.

157 Ibid., para. 7.41.

158 Court of Appeal of the Hague, Prosecutor v. Maher H, Case No. 22-005306-14, Judgement, 7 July 2016, cited in H. Cuyckens and C. Paulussen, above note 40, p. 10.

159 Court of Appeal of the Hague, Prosecutor v. Maher H, Case No. 22-005306-14, 7 July 2016.

160 Ibid., para. 13.

161 Ibid., para. 13.

162 In France, while the same rationale was applied in a case before the 16th Criminal Chamber of the Paris Court of First Instance, the tribunal acquitted a person charged with “association of wrongdoers in relation to a terrorist enterprise” for joining the armed group Ahrah Al-Sham in Syria in 2015, because the group could not be qualified as terrorist, according to the judge. See Paris Court of First Instance, Case No. 13099000941, Judgment (16th Criminal Chamber), 28 September 2018, cited in S. Weill, above note 105, p. 225.

163 UNSC Res. 2178, 24 September 2014, op. para. 6(a); UNSC Res. 2396, 21 December 2017.

164 International Criminal Database, “R v. Mashudur Choudhury”, available at: www.internationalcrimesdatabase.org/Case/3286.

165 Senate of the Philippines, “‘Potential Test Case’, Lacson: Suspected Indonesian Suicide Bomber Faces Charges for Violating Anti-Terrorism Act of 2020”, press release, 14 October 2020, available at: http://legacy.senate.gov.ph/press_release/2020/1014_lacson1.asp.

166 Particularly in South East Asia – see Emma Broches, “Southeast Asia's Overlooked Foreign Fighter Problem”, Lawfare, 5 June 2020, available at: www.lawfareblog.com/southeast-asias-overlooked-foreign-fighter-problem.

167 On this, see H. Cuyckens and C. Paulussen, above note 40, p. 10.

168 New Zealand, Terrorism Suppression Act, above note 139, Art. 19.

169 Belgian Criminal Code, above note 146.

170 See Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on Combating Terrorism, and Replacing Council Framework Decision 2002/475/JHA and Amending Council Decision 2005/671/JHA, Recital 37, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32017L0541.

171 See, for instance, ibid., Recital 37.

172 Belgian Criminal Code, above note 146, Art. 141bis.

173 New Zealand, Terrorism Suppression Act, above note 139, Art. 19.

174 See, for instance, District Court of the Hague, Imane B, above note 147.

175 See Brussels Court of Appeal, Case No. 2017/2911, Decision (Chamber of Indictment), 14 September 2017.

176 See above note 32.

177 Dustin A. Lewis, “Humanitarian Exemptions from Counter-Terrorism Measures: A Brief Introduction”, Proceedings of the 17th Bruges Colloquium, 2016, p. 144.

178 Switzerland, above note 61.

179 See above note 138.

180 UK Counter-Terrorism and Border Security Act, 2019, Section 4(4–6).

181 Philippines, Republic Act. No. 11479, above note 62, Section 13.

182 Cited in the ICRC, above note 59.

183 See Directive (EU) 2017/541, above note 170, Recital 38.

184 European Commission, above note 137.

185 See D. A. Lewis, above note 177.

186 Directive (EU) 2017/541, above note 170, Recital 38, states that “the provision of humanitarian activities by impartial humanitarian organisations recognised by international law, including international humanitarian law, do[es] not fall within the scope of this Directive”.

187 Philippines, Republic Act. No. 11479, above note 62, Section 13. On this, see Fionnuala Ní Aoláin et al., comment on the Anti-Terrorism Act of 2020, UN Doc. OL PHL 4/2020, 29 June 2020, available at: https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25384; and the Philippine government's reply to this comment, available at: https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25384.

188 C. Paulussen and E.-C. Gillard, above note 121.

189 Switzerland, above note 61.

190 Directive (EU) 2017/541, above note 170, Recital 38.

191 New Zealand, Terrorism Suppression Act, above note 139, Section 10(3).

192 See above note 138.

193 See UK Counter-Terrorism and Border Security Act, 2019, Section 4(4–6).

194 See C. Paulussen and E.-C. Gillard, above note 121; M. Buissonière, S. Woznick and L. Rubinstein, above note 122, p. 21; Wynn-Pope, Phoebe, Zegenhagen, Yvette and Kurnadi, Fauve, “Legislating against Humanitarian Principles: A Case Study on the Humanitarian Implications of Australian Counterterrorism Legislation”, International Review of the Red Cross, Vol. 97, No. 897–898, 2016Google Scholar.

195 N. Weizmann, above note 60.

196 See above note 88.

197 Genocide Network and Eurojust, above note 83.

198 UNSC Res. 2396, 21 December 2017, op. para. 18.

199 ICRC Customary Law Study, above note 36, Rule 158.

200 Delegation of the ICRC to the United Nations, “Information and Observations on the Scope and Application of the Principles of Universal Jurisdiction: General Assembly Resolution 74/192”, April 2020.

201 Including UN mechanisms such as the IIIM and UNITAD (see above note 100), as well as non-UN entities such as specialized non-governmental organizations.

202 See the example of the Special Jurisdiction for Peace in Colombia, which has the mandate to grant amnesty to FARC ex-combatants who have not been charged with grave crimes. See Colombia, Law No. 1820 Providing for Amnesty, Pardon and Special Criminal Treatment Provisions and Other Provisions, 30 December 2016.

203 Views and practices can be shared across various formal or informal fora at the UN. This can take place in the form of an Arria-Formula (an informal meeting of the UNSC requested by one or more members of the Council to engage on matters within the competence of the Council but on which there may not be any agreement, or to engage with high representatives of government, multilateral organizations, non-State actors, experts, etc.) or a meeting of a relevant Group of Friends (an informal congregation of States working in cooperation to further specific thematic issues). Such a convening could also take place beyond the UN, in being initiated and organized by States (in the form of a retreat, a series of dialogues or a study with the purpose of circulating good practices), or can be led by civil society.

204 See UNSC Res. 2462, 28 March 2019, op. para. 24; UNSC Res. 2482, 19 July 2019, op. para. 16.

205 See the precedential language in operative paragraph 22 of UNSC Res. 2368, renewing and updating the ISIL and Al-Qaeda Sanctions Regime, which calls to “protect non-profit organizations, from terrorist abuse, using a risk-based approach, while working to mitigate the impact on legitimate activities” (emphasis added).

206 Operative paragraph 19 of UNSC Res. 2396 “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”.

207 Ali Altiok and Jordan Street, “A Fourth Pillar for the United Nations: The Rise of Counter-Terrorism”, Saferworld, June 2020.

208 Including all iterations requiring complying with IHL as well as with operative paragraphs 5, 6 and 24 of UNSC Res. 2462, and operative paragraph 18 of UNSC Res. 2396.

209 Guidance is regularly developed by Inter-Agency Working Groups of the Counter-Terrorism Compact; see, for instance, United Nations, Guidance to States on Human Rights-Compliant Responses to the Threat Posed by Foreign Fighters, November 2018, available at: www.ohchr.org/EN/newyork/Documents/Human-Rights-Responses-to-Foreign-Fighters-web%20final.pdf.

210 Concerns exist, however, on the issue of bolstering CTED's mandate in regard to IHL. See D. A. Lewis, N. K. Modirzadeh and J. Burniske, above note 67.

211 B. Saul, above note 10, p. 3.