OPINION STATEMENT OF OPINION ON THE IMPACT OF COUNTER-TERRORISM LEGISLATION ON HUMANITARIAN ACTION

Transcription

1 OPINION STATEMENT OF OPINION ON THE IMPACT OF COUNTER-TERRORISM LEGISLATION ON HUMANITARIAN ACTION 2 OCTOBER 2018

2 Statement of opinion on the impact of counter-terrorism legislation on humanitarian action was adopted at the plenary assembly of 2 October 2018 (unanimous adoption). Table des matières PART I. TERRORISM: APPLICABLE INTERNATIONAL LEGAL FRAMEWORK 6 A - Strengthening international counter-terrorism provisions 6 B - The specificity of International Humanitarian Law 8 PART II OBSTACLES TO HUMANITARIAN ACTION 11 A Financial obstacles 12 B Administrative obstacles 13 C The criminalisation of aid and infringements on humanitarian principles 14 PART III - PRESERVING HUMANITARIAN ACTION IN A COUNTER-TERRORISM CONTEXT 17 A The mechanics of exemptions 17 B Working towards generalising exemptions by sector 18 PART IV - THE CNCDH S RECOMMENDATIONS 20 ANNEX 1 - List of people interviewed

3 In recent years, the Commission nationale consultative des droits de l homme (CNCDH) has paid close attention to France s counter-terrorism policy, whilst highlighting the abuses witnessed for reasons of security at the expense of rights and freedoms. In doing so, it focused mainly on the internal scope of legislation with regard to France s constitutional principles and conventional undertakings in the field of International Human Rights Law (IHRL). In keeping with its recent opinions 1, the CNCDH has begun to examine the international dimension of this issue, particularly in light of the rules and principles of International Humanitarian Law (IHL) 2. It intends to draw public authorities attention to the potential effects of international and French counter-terrorism legislation on the effectiveness and impartiality of humanitarian action, and, in particular, on humanitarian access during armed conflict. by humanitarian organisations, the CNCDH has endeavoured to provide a reminder of the international legal framework from both of its perspectives before focusing on the obstacles reported to it with a view to identifying good practices that should be generalised in order to preserve humanitarian action. On his report on the Capability of the United Nations system to assist Member States in implementing the United Nations Global Counter-Terrorism Strategy, the Secretary- General of the United Nations 3 addresses the evolving terrorist threat that the international community faces noting that terrorist groups such as Islamic State in Iraq and the Levant (Da esh), Al-Qaida and Boko Haram continue to pose a threat to international peace and security. In addition, terrorism has a devastating impact on sustainable development, human rights and humanitarian action at the global, regional and national levels 4. Thus, civilian populations risk becoming double victims of hostilities: victims due to international and non-international armed conflicts involving unlawful acts of terrorism but also victims of the indirect effects of these situations, often related to severe sanction regimes or international legislation, which could hinder the effectiveness of humanitarian aid. With many interviews 5 having highlighted the sometimes tragic realities witnessed 1. CNCDH, Statement of opinion on the legislative provisions proposed by the Government to strengthen the fight against terrorism, Plenary Assembly of 29 October 2001; CNCDH, Statement of opinion on the Act on security and counter-terrorism, Plenary Assembly of 20 December 2012; CNCDH, Statement of opinion on the draft law strengthening the provisions on counter-terrorism, Plenary Assembly of 25 September 2014, JORF no of 5 October 2014, text no. 45; CNCDH, Statement of opinion on the draft law on intelligence in its version recorded on 1 April 2015 with the presidency of the French National Assembly, Plenary Assembly of 16 April 2015, JORF no of 26 July 2015, text no. 43; CNCDH, Statement of opinion on the draft law strengthening the fight against organised crime, terrorism and their financing, and improving the effectiveness and guarantees of criminal procedure, Plenary Assembly of 17 March 2016, JORF no of 4 June 2016, text no. 69; CNCDH, Statement of opinion on the permanent state of emergency, Plenary Assembly of 15 December 2016, JORF no of 4 March 2017, text no. 82; CNCDH, Statement of opinion on the state of emergency and the anti-terrorist measures of the Act of 21 July 2016, Plenary Assembly of 26 January 2017, JORF no of 4 March 2017, text no. 83; CNCDH, Statement of opinion on the act on public security, Plenary Assembly of 23 February 2017 JORF no of 1 March 2017, text no. 89; CNCDH, Statement of opinion on the prevention of radicalisation, Plenary Assembly of 18 May 2017, JORF no of 1 April 2018, text no. 46; CNCDH, Statement of opinion on the draft law strengthening domestic security and counter-terrorism, Plenary Assembly of 6 July 2017, JORF no of 18 November 2017, text no A brief presentation of IHL is available on the ICRC website: International humanitarian law is a set of rules that seek to limit the effects of armed conflict. It protects people who are not or are no longer participating in hostilities and restricts the means and methods of warfare. 3. M. Antonio Guterres, Secretary General of the United Nations since 1 January Secretary General of the United Nations, Capability of the United Nations system to assist Member States in implementing the United Nations Global Counter-Terrorism Strategy, Report, A/71/858, Para. 4, 3 April See Annex 1 of this opinion. 4 5

4 PART I. TERRORISM: APPLICABLE INTERNATIONAL LE- GAL FRAMEWORK A - Strengthening international counter-terrorism provisions To examine the obstacles to humanitarian action which may arise from the application of French legislation or from the implementation of international counter-terrorism law, it is necessary to first specify the legal framework of the fight against terrorism. Said framework has been developed step by step by the United Nations, since the 1990 s with sanctions against some States (Libya, Sudan) and later against groups such as the Taliban or Al-Qaida following Security Council Resolution 1267 in 1999 creating the AQ Committee responsible for overseeing sanctions. Pursuant to resolution 1269, States are required to cooperate to prevent terrorist acts. In the aftermath of the attacks of 11 September, the Security Council reacted as early as 12 September 2001 and adopted resolution 1368 recognising the existence of threats to international peace and security caused by terrorist acts, before resolution 1373 of 28 September 2001 later created a counter-terrorism committee within the Security Council, to be assisted by an executive directorate of the counter-terrorism committee in charge of monitoring the measures adopted by the Security Council. Thus, resolution 1373 provides in particular that States must 1. (d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons. Since then, a series of Security Council resolutions have set up sanction regimes with everincreasing scopes, targeting individuals and organisations. Resolution 2161 of 17 June 2014 on Al-Qaida also highlights the responsibilities of non-governmental organisations (NGOs), by recognising the need for Member States to prevent the abuse of non-governmental, nonprofit and charitable organisations by and for terrorists, and calling upon non-governmental, non-profit and charitable organisations to prevent and oppose, as appropriate, attempts by terrorists to abuse their rights to freedom of expression and association of individuals in civil society and freedom of religion or belief. Given that these sanction regimes that are established and monitored by the Security Council are enforced on States, pursuant to Article 29 of the UN Charter, and given that these have been relayed through regional sanctions, and particularly European sanctions, and strengthened by national measures, they have a direct impact on the activities of NGOs, and, a fortiori, on those of humanitarian organisations. In criminal matters, national legislations have also been strengthened to combat terrorism by sanctioning the authors and accomplices of terrorist acts. The United Nations General Assembly summarised discussions on counter-terrorism, and particularly those led by the Secretary-General, in its report of 2 May 2006 Uniting against terrorism, following an initial strategy adopted during the 2005 World Summit to set out the United Nations Global Counter-Terrorism Strategy appended to resolution 60/288 of 8 September This strategy is based on four pillars 6, the last being the protection of human rights and the strengthening of the rule of law. It is in this context that a United Nations Counter-Terrorism Centre was established, succeeding the task force established in 2005, whose mission was to coordinate the actions of 38 entities within the United Nations. It can be noted that the Office for the Coordination of Humanitarian Affairs (OCHA) and the United Nations Office of the High-Commissioner for Refugees (UNHCR) enjoy the status of task force observers. Ten years later, following the abovementioned report by the Secretary- General on 3 April 2017, the General Assembly adopted resolution 71/291 of 15 June 2017 which strengthens this measure by creating an Office of counter-terrorism, entrusted to a Under-Secretary-General, with the task of implementing the General Assembly s mandates, better coordinating the action of entities involved in the strategy and strengthening States capacities. This restructuring is presented as a first stage in the reorganisation of the United Nations by the Secretary General. The CNCDH notes that the issues relating to humanitarian actions are covered by actions falling under the fourth pillar concerning victim support, as illustrated by the conference of February 2016 on the human rights of victims of terrorism. Where the strategy s purpose is to combat terrorism in times of peace, the specificity of the rules of International Humanitarian Law should be fully taken into account. In this respect, the CNCDH considers that a specific pillar should be dedicated to this purpose. The international counter-terrorism framework also includes a vast network of approximately twenty multilateral instruments, conventions and protocols, with a universal dimension, and which incriminate acts of terrorism. The international convention on the financing of terrorism, adopted in 1999, has a particularly wide scope, as it forces States to criminalise such financing under all its forms, whether such financing is direct or indirect through organizations which also have or claim to have charitable, social or cultural goals. Unlike most other instruments which focus only on times of peace, by referring to International Humanitarian Law for acts of terrorism committed during armed conflicts, the 1999 convention is applicable in all times. This legal framework is completed at regional level. Thus, on 4 July 2018, the Council of Europe adopted through the Committee of Ministers a strategy relating to counter-terrorism (CM52018)86), centred around 3 lines of action: prevention, prosecution and protection. These actions are coordinated by the new Steering Committee on Counter- Terrorism (CDCT). The European Convention on the Prevention of Terrorism (no. 196) adopted in Warsaw in 2005 is the centrepiece of the regulatory framework. It was ratified 40 times, including by the European Union on 26 June An additional protocol to the European Convention on the Prevention of Terrorism (no. 217) completing said Convention was 6. These four pillars are: 1. Addressing the conditions conducive to the spread of terrorism. 2. Preventing and combatting terrorism. 3. Building States capacity and strengthening the role of the United Nations. 4. Ensuring human rights and the rule of law. 6 7

5 adopted in Riga in 2010; it has already been ratified 13 times, including by France and the European Union. A provision of Article 26 Para. 4 of the Convention on its effects notes that said convention does not change the obligations of States under international law, including international humanitarian law, however its explanatory report does not further develop the scope of this clause reprised in other instruments. These international, regional and national provisions are intended to apply in times of peace. Therefore, their applicability during times of armed conflict is problematic, as its risks clashing with certain provisions and fundamental principles under international humanitarian law, lex specialis in times of armed conflict. Recommendation No. 1: The CNCDH recommends that counter-terrorism legislation explicitly differentiate between times of peace and times of war, to remove situations of armed conflict from their scope of application, to comply and ensure compliance with IHL and to promote actions that are exclusively humanitarian during armed conflicts. B - The specificity of International Humanitarian Law In view of this legal corpus, which strengthens international cooperation in terms of combatting terrorism during times of peace, it is important to recall which legal framework is applicable during armed conflicts, i.e. the provisions and principles of conventional and customary IHL, and particularly regulations relating to acts of terrorism. Indeed, the majority of acts of terrorism are perpetrated during times of armed conflict, a context in which IHL is applicable. It should first be highlighted that, during armed conflicts, there is an absolute ban on attacking civilian populations 7 ; terrorising such populations is prohibited 8 and many provisions contained in the Geneva Conventions and in Additional protocols prohibit the use of terrorism as a method of warfare 9. In addition, Article 33 of the 4 th Geneva Convention of 1949 on the protection of civilian persons prohibits all measures of intimidation or of terrorism by State Parties. IHL distinguishes between two types of situations: international armed conflicts (between two or more States) and non-international armed conflicts (between a State and an armed group or between two or more armed groups within the territory of one State). The 7. Rule 1, Customary International Humanitarian Law - Chapter I: Rules, ICRC; The principle of distinction is codified in Articles 48, 51 Paragraph 2 and 52 Paragraph 2 of Additional Protocol I. 8. Rule 2, Customary International Humanitarian Law - Chapter I: Rules, ICRC. 9. See: Articles 27, 33, 34 of the Geneva convention relative to the protection of civilian persons in time of war of 12 August 1949; see also Article 51 Para. 2 of the Protocol additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of international armed conflicts (Protocol I), and Articles 4 and 13 of the Protocol additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of non-international armed conflicts (Protocol II). former are governed by all four Geneva Conventions and Protocol Additional I; the latter are governed by Article 3 common to all four Geneva conventions and by Protocol Additional II. The two Protocols Additional of 1977 completed the provisions of the Geneva Conventions by distinguishing between two types of situations. The first protocol relates to the protection of victims of international armed conflicts, and expressly includes armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination 10. The second protocol completes Article 3, common to all four Geneva Conventions, on the protection of victims of non-international armed conflicts, i.e. conflicts which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this protocol. All these criteria enable to determine whether the protocol is applicable to a crisis situation involving armed groups. Furthermore, Article 1 Para. 2 of Protocol II specifies that this protocol shall not apply to situations of internal disturbances and tensions, such as [...] isolated and sporadic acts of violence and other acts of a similar nature. Therefore, there is a grey area in which the application of protocols is uncertain; yet, Article 3 common to all Geneva Conventions of 1949 establishes minimum provisions applicable in cases of armed conflict not of an international character and imposed on each Party to the conflict. The subject of IHL applicability is even more important as today the Office for the Coordination of Humanitarian Affairs (OCHA) recognises that conflicts are a major factor in the increase in humanitarian needs in 2018, and, consequently, the majority of humanitarian actions remain centred on conflicts 11. When humanitarian law is applicable, humanitarian action benefits from its own protective legal regime enabling it to explicitly provide relief to populations in need 12, in particular: the right of humanitarian initiative for impartial humanitarian organisations 13, and the obligation for States to not arbitrarily refuse them 10. Article 2 of the Protocol additional to the Geneva Conventions of 12 August 1949 relative to the protection of victims of international armed conflicts (Protocol I). 11. Indeed, in times of war, civilians are often deprived of vital goods and services. The UN estimates that million people are in need, requiring a humanitarian response representing over 25 billion dollars. Statistics from the Office for the Coordination of Humanitarian Affairs, Available at: These numbers make no distinction for people requiring humanitarian aid due to armed conflict. Yet, according to the OCHA, approximately 97% of humanitarian aid is related to complex emergency situations which are directly or indirectly linked to conflicts. 12. Particularly, Article 18 Para. 2 of Protocol additional II to the Geneva Conventions of 12 August 1949 relative to the protection of victims of international armed conflicts (Protocol II): If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned. 13. See: Article 9 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949; Article 9 of the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949; Article 9 of the Geneva Convention relative to the treatment of prisoners of war of 12 August 1949 and Article 4 of the Geneva Convention relative to the protection of civilian persons in time of war of 12 August

6 access to persons in need 14. Joint Article 3 specifies that an impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict, highlighting that the application of the preceding provisions shall not affect the legal status of the Parties to the conflict. The CNCDH notes that in situations other than armed conflicts, where IHL is not applicable, humanitarian actors do not benefit from such a protective legal regime. Nongovernmental organisations, in particular local organisations, could be weakened as a result. Although counter-terrorism policies are legitimate, their instrumentalisation and abuses in their implementation are witnessed in many States by civil society, by National Human Rights Institutions (NHRI) and by international experts 15. The consequence of these abuses is a, sometimes wide, restriction of the conditions for exercising fundamental freedoms, in a global context in which local civil societies are already raising the alarm about their shrinking space 16. Recommendation No. 2: The CNCDH encourages all political, humanitarian and academic stakeholders to strengthen their cooperation in articulating the legal framework with infield situations to ensure the effectiveness of humanitarian action. Recommendation No. 3: The CNCDH recommends that, when addressing counter-terrorism issues, the Government and the Parliament strengthen a regular dialogue with humanitarian and human rights stakeholders, in order to ensure mutual understanding of their respective missions and improved cooperation. PART II OBSTACLES TO HUMANITARIAN ACTION Humanitarian stakeholders must act within the international counter-terrorism framework, detailed above, which has a negative impact on their effectiveness and their impartiality. This legal framework applies to humanitarian stakeholders through its transposition into national legislation or through its consideration in humanitarian aid financing agreements. These obligations clash with compliance with humanitarian principles and the effectiveness of aid. Humanitarian action must comply with the humanitarian principles of humanity, impartiality, neutrality, independence. These principles were adopted in their current state during the 20 th International Conference of the Red Cross in They were reaffirmed, independent of armed conflict circumstances, as grounds for humanitarian action, by Resolution 46/182 of the United Nations General Assembly of 19 December They were later reprised in 1994 in the Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief and in the European Consensus on Humanitarian Aid 18. The notions humanitarian and impartial used in the Conventions are analysed in the Commentary on the Conventions of 1949, and, more particularly, are analysed in detail in the updated commentaries on the Geneva Conventions published in A body that undertakes humanitarian activities aims to prevent and alleviate human suffering in order to protect life and health and to ensure respect for the human being 19. According to the principle of impartiality, humanitarian organisations ensure that their activities are not affected by any consideration relating to the affiliations of persons in need, nor to their behaviour. Impartial aid is provided only according to needs, without discrimination between populations 20. According to the principle of neutrality, humanitarian aid must not favour a Party to an armed conflict or any other conflict. Independent humanitarian aid does not pursue any political, economic, military or other purpose, and ensures that the only purpose of aid is to provide relief and prevent the suffering of victims. 14. The Conventions state that access must be provided. The new 2016 Commentary indicates that this authorisation cannot be arbitrarily refused (Para. 1174). 15. Meeting with Mrs Fionnuala Ni Aolain, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism on 14 May 2018, as part of her official visit to France. 16. For further details on this notion, see for example: shrinking-space-for-civil-society/. 17. undamental humanitarian principles, developed as early as the first Geneva Convention in 1864, are the basis for all International Humanitarian Law. 18. See: International Review of the Red Cross, French selection, Vol. 97, 2015/1 and 2, Issue Principles guiding humanitarian action, particularly the article on Legislating Against Humanitarian Principles: A Case Study on the Humanitarian Implications of Australian Counterterrorism Legislation, pp Commentary of common Article 3, 2016, Para The activities concerned are manifold and there is no list. The Commentary published under the direction of the ICRC recognises that these may evolve according to conflicts; and it does not distinguish between assistance activities and protection activities, highlighting that these can overlap and on the whole pursue the same purpose (Paras. 810 to 813). 20. See: Commentary on the Geneva Conventions, 2016 edition, Para

7 Amongst the pressures applied on humanitarian organisations, the CNCDH draws attention to three main aspects: financial obstacles, administrative difficulties relating to compliance and the criminalisation of humanitarian action. A Financial obstacles The Financial Action Task Force (FATF) 21, an intergovernmental organisation whose purpose is to establish standards that are the subject of recommendations with a view to developing legislative, regulatory and operational measures to combat money laundering and the financing of terrorism, had considered humanitarian organisations as particularly high-risk as regards money laundering, which had contributed towards a strict interpretation as regards financing granted to them 22. Today, it recognises that humanitarian organisations have put in place systems to combat corruption and money laundering which comply with the standards of the sector. Its recommendation relating to non-profit organisations has been reviewed and now explicitly refers to proportionality and the risk-based approach 23. The current wording of Recommendation 8 provides that States should review the adequacy of laws and regulations that relate to non-profit organisations which they have identified as being vulnerable to terrorist financing abuse 24. Among the five types of measures requested of the States in Article 1 of Resolution 1373, the fifth seems to apply to NGOs: Prohibit [...] from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts. Consequently, the compliance of banking systems with this measure, as well as, more generally, their compliance with all rules relating to combatting money laundering and the financing of terrorism, has significant effects on the operational arrangements of humanitarian organisations 25. Indeed, banks have become extremely careful in their approach26, in particular as regards banking operations in areas in which there are groups that are considered terrorist groups. It has therefore become very complicated for humanitarian organisations acting in 21. The FATF is comprised of 35 countries and 2 regional organisations (European Commission and Gulf Cooperation Council), in addition to 3 observer members. The full list is available at: membersandobservers/. 22. Recommendation no. 8, International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation - The FATF Recommendations, adopted by the FATF Plenary in February 2012, updated in November Crime, Law and Social Change, March 2018, Volume 69, Issue 2, pp , Protecting charities from terrorists and counterterrorists: FATF and the global effort to prevent terrorist financing through the non-profit sector. 24. Recommendation no. 8, International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation - The FATF Recommendations, adopted by the FATF Plenary in February 2012, updated in November Interview of Ms Magali Mourlon with the CNCDH, on 14 March Emanuela-Chiara Gillard, Humanitarian Action and Non-State armed groups The international legal framework, Research paper, Chatham House The Royal Institute of International Affairs, February 2017, p.11. these areas to carry out the necessary financial transactions for their activities abroad, such as the payment of salaries or the purchase of essential goods. In reality, a bank can unilaterally decide to suspend transactions to a given zone, and even to close the accounts of a humanitarian organisation to avoid the risk of being prosecuted, thereby hindering relief activities 27. The suspension of such banking operations can either delay the provision of humanitarian aid 28, or weaken humanitarian organisations who take a financial risk to cover their related costs 29. This situation affects the operational capacity of humanitarian organisations 30 and weakens their acceptance 31 by local populations, thereby putting the safety of their personnel at risk. Reacting to these banking obstacles, and to ensure that the humanitarian imperative is answered, some humanitarian organisations are prepared to increase the risks that they take and to resort to informal money remittance systems. Recommendation No. 4: The CNCDH recommends that the French government strengthen its relationships with the various stakeholders concerned by the topic of financial transactions in order to ensure the regularity of banking flows to humanitarian organisations. Recommendation No. 5: The CNCDH recommends the implementation of an interministerial think-tank (the Ministry of the Interior, the Ministry of Finance and the Ministry of Europe and Foreign Affairs are particularly concerned) on the topic of the incidence of anti-terrorist measures on humanitarian action, and in particular financial transactions. B Administrative obstacles Many States and institutions that award financing to organisations, such as the United States or France 32, include clauses in their contracts with humanitarian organisations - pursuant to legislation relating to counter-terrorism - enforcing their compliance with such legislation. Many humanitarian organisations accept these clauses 33, even though they may 27. Emanuela-Chiara Gillard, Recommendations for reducing tensions in the interplay between sanctions, counterterrorism measures and humanitarian action, Research paper, Chatham House The Royal Institute of International Affairs, August 2017, p These anti-terrorist laws also apply to international purchases and weigh on the logistics of humanitarian organisations in situations of emergency. The purchase and the provision of necessary equipment in the field often suffers from excessive delays: for example, the dispatching of a computer - which is an essential piece of equipment in order to monitor projects and comply with obligations - to Syria can take up to six weeks due to the length of verification procedures. 29. Humanitarian organisations are also not strangers to having their request for funds refused, without any specific reason for such as refusal. 30. Le Monde, Les ONG pour la Syrie, victimes du renforcement de la lutte contre le financement du terrorisme (NGOs for Syria: victims of the strengthening of the fight against the financing of terrorism), 27 April Acceptance is a concept relating to the security of humanitarian organisations which aims to actively build and nurture good relationships with local communities, parties to the conflict and any other stakeholder concerned, in order to gain their consent to their presence and their work. Any obstacle to this interaction endangers the safety of persons concerned. See: Office for the coordination of humanitarian affairs, To stay and deliver good practice for humanitarians in complex security environments, Policy and studies series, 2011, p Interview of Ms. Naz Mordizadeh before the CNCDH, on 22 November Depending on the capacities of the stakeholders concerned, the conditions for application of these clauses 12 13

8 clash with their principles. For example, they force them to carry out identity checks by referring to lists of individuals suspected of terrorism, potentially breaching the freedoms of the individuals concerned. These checks concern first and foremost their staff 34, but also their suppliers and partners. This obligation to check identities increases administrative costs and complicates human resource management. Humanitarian organisations now devote a large portion of their resources (time, tools, personnel) to such compliance, which can lead to a strategic choice to allocate funds to the administrative or legal budget rather than to operational budgets. This constraint can weigh heavily on organisations that lack the resources to invest in specialised legal teams and can affect their operational capacities 35. For the CNCDH, the requirements to comply with anti-terrorist legislation seem, in this context, excessive in view of the objective pursued and contradict the very purpose of humanitarian organisations mandates. The CNCDH recommends adopting an approach based on proportionality and on risks such as that adopted by FATF. Recommendation No. 6: In order to fully comply with the international conventional and customary provisions of international humanitarian law, the CNCDH recommends that France acts in favour of removing clauses in financing agreements which would limit the activities of humanitarian stakeholders in situations of armed conflict. C The criminalisation of aid and infringements on humanitarian principles The trend of criminalising aid developed following United Nations Security Council resolution 1373 which criminalises all forms of support or services provided to groups identified as terrorists 36. An excessively quick analysis of these obligations in the context may be negotiated. 34. Indeed, these are often citizens of the territory in which the organisation is acting, and they can potentially be found on one of the anti-terrorist lists established by States or by the United Nations. These lists can contain thousands of names, and sometimes even homonyms, which renders checks extremely long and costly in terms of human resources. In addition, if an organisation received funds from different governments, this means a different list for each government, and therefore several approaches in order to avoid prosecution. For examples of these lists, for the United Nations see: xsl/en/al-qaida.xsl and for the European Union see: For example, the integration of specialist legal skills and the transfer to humanitarian organisations of compliance tasks exceeding what could be expected from organisations, consequently lead to an increase in their structural costs to the detriment of operational expenses. 36. Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of of humanitarian intervention may hinder humanitarian activities, although legal under international law and humanitarian principles, such as the necessary dialogue between the different parties to an armed conflict, including, sometimes, with groups considered terrorist. As highlighted by the ICRC 37: Humanitarian access is a precondition for the conduct of proper assessments of humanitarian needs, for the implementation and monitoring of relief operations and for ensuring appropriate follow-up 38. One of the conditions for the proper dispatch of humanitarian aid is quick and unimpeded access by relief organisations and non-governmental organisations to populations, and by populations to humanitarian aid, regardless of the Party exercising authority over the zones in question. Choosing wide criteria to characterise the support provided to groups considered as terrorist groups has allowed some States to treat humanitarian activities - and particularly medical activities - as a form of unlawful support, thereby criminalising those who offer assistance, even though these activities are protected under international humanitarian law 39. Humanitarian organisations and their personnel can therefore be prosecuted 40 under several competing national criminal legislations: those of the States party to the armed conflict; that of the State where the organisation has its registered office; that of the State of nationality of humanitarian personnel; that of States providing backing; and even that of any other State having endowed its laws with an extra-territorial dimension 41. As discussed above, IHL explicitly enables humanitarian organisations to offer relief to populations in need 42, and recent Security Council resolutions (2175 (2014) and 2286 (2016) entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons, Resolution 1373, 1. (d) 37. CRC, Commentary on the First Geneva Convention, 2016, Para See also Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law - Chapter I: Rules, ICRC, Bruylant Bruxelles, st International Conference of the Red Cross and Red Crescent, International Humanitarian Law and the challenges of contemporary armed conflicts, Geneva, 28 November - 1st December 2011, 31IC/11/5.1.2, p Interview with Ms Françoise Boucher-Saulnier before the CNCDH, on 13 December See also: Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, published in 2010 (available at Although few today, the number of cases of accused, and even convicted, medical staff, for having provided medical assistance to members of a group identified as being a terrorist group, even when they did not know their identity, are increasing. See: Françoise Boucher-Saulnier, Consent to Humanitarian Access: An Obligation Triggered by Territorial Control, Not States Rights, International Review of the Red Cross, Volume 96, French selection, 2014/1, p Interview with Ms Françoise Boucher-Saulnier before the CNCDH, on 13 December For examples of convictions of humanitarian organisation leaders, see: Kate Mackintosh and Patrick Duplat, Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action, July 2013, p.24 and 25. See also: Naz K. Modirzadeh, Comment on the Pilot Empirical Survey Study on the Impact of counterterrorism measures on humanitarian action, March Emanuela-Chiara Gillard, Humanitarian Action and Non-State armed groups The international legal framework, Research paper, Chatham House The Royal Institute of International Affairs, February 2017, p Particularly, Article 18, Para. 2 of Protocol Additional II to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II): If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned. This rules echoes doctors code of ethics

9 for example) remind States of their obligations in this respect, by strongly condemning all forms of violence and intimidation, including, inter alia, [...] illegal arrest and detention of humanitarian personnel and urging all parties involved in an armed conflict to allow full unimpeded access by humanitarian personnel to all people in need of assistance 43. Lastly, compliance with legislation on counter-terrorism can force humanitarian organisations into making difficult operational choices which in some cases can be contrary to humanitarian principles. Humanitarian organisations that accept to comply with antiterrorist legislations can be required to be more selective in how they meet populations needs, thereby violating the principles of humanity and impartiality 44. Organisations can go so far as to suspend humanitarian aid to civilian populations under the authority of non-state armed groups that are identified as terrorist groups, even though they may have the most important primary needs. Faced with such complex laws and policies, some organisations set themselves limits that are much more restrictive than effectively required by law 45, in order to pre-emptively ward off any pressure or threat of criminal sanction, and therefore avoid any risks to the organisation and its personnel. Recommendation No. 7: The CNCDH recommends that, for its bilateral relationships and with international institutions, France supports policies that protect humanitarian aid and humanitarian personnel, in keeping with the humanitarian strategy led by France, which is ambitious in terms of IHL 46. PART III - PRESERVING HUMANITARIAN ACTION IN A COUNTER-TERRORISM CONTEXT Humanitarian aid and the fight against terrorism face many obstacles on the route to becoming fully effective without threatening their respective objectives. Yet, the systematic establishment of IHL safeguard clauses and of exemptions for humanitarian action could enable a better articulation between these very different activities. The aim is not to invent but to systematise a model based on frequent patterns over the past 25 years as regards sanctions - or more precisely measures of isolation intended to apply pressure - adopted by the United Nations under Article 39 of the Charter. However, these patterns are diverse, and there is still work to do to formulate a concept on the basis of many scattered cases. A The mechanics of exemptions The following observations should be made: exemptions generally occur on a case-bycase basis and are made by a Committee of the Security Council; and exemptions usually occur in predetermined hypotheses, such as for categories of goods (for example, non-lethal military equipment for humanitarian use 47 ), transfers of money 48 or predetermined travel 49. The CNCDH regrets that the topic of humanitarian exception was not developed in the United Nations Strategy adopted in The Action Plan appended to this strategy addresses, in paragraph 15, the granting of humanitarian exceptions, without any further details, and without providing any specific process 50. The case of Somalia is an interesting example of exemption. In 2010, this country once again witnessed a great famine. Resolution 1916 created a humanitarian exemption based on the ongoing work of humanitarian stakeholders in the country. In point 5), the Security 43. See: United Nations Security Council, Resolution 2175, 29 August 2014, S/RES/2175(2014) and United Nations Security Council, which strongly condemns all forms of violence and intimidation, including, inter alia, [...] illegal arrest and detention of humanitarian personnel and urges all parties involved in an armed conflict to allow full unimpeded access by humanitarian personnel to all people in need of assistance 44. Interview with Ms Magali Mourlon before the CNCDH, on 14 March Some organisations might call off their training activities, reduce the scope of proposals that they submit to the government in order to obtain financing in situations of emergency, or redirect their priorities when the risk of being held liable appears too great. To save their most vital programmes, organisations run the risk of taking a very cautious approach, and consequently, of carrying out actions that are not as useful to civilian populations in need of help. See: Naz K. Modirzadeh, Dustin A. Lewis and Claude Bruderlein, Humanitarian Engagement Under Counter-Terrorism: A Conflict of Norms and the Emerging Policy Landscape, International Review of the Red Cross, Volume 93, French Selection 2011/2, p Strategy adopted in March 2018, available at: In particular, this topic was addressed during discussions at the National Humanitarian Conference of 22 March For example, Resolutions 1493, Para. 21 and 1572 Para. 8d). For categories of goods. These will be for example, non-lethal military equipment for humanitarian use or, also, goods for which common sense dictates that they are intended for suffering populations. Resolution 661 : ban on the sale or supply of all basic products but not including supplies intended strictly for medical purposes and in humanitarian circumstances, foodstuffs (661, Para. 3, c)). Resolution 687 provides an exemption for materials and supplies for essential civilian needs. The exemption procedure is provided in Para For categories of predetermined transfers of money for which concerned States can prove legitimacy. For example, Resolution 1591 lists the cases in which measures (...) do not apply to funds, other financial assets and economic resources, as, in particular, when they are deemed necessary for basic expenses, or necessary for extraordinary expenses, provided that such determination has been notified by the relevant States to the Committee and has been approved by the Committee ; The relevant States have determined that they are the subject of a privilege or a judicial, administrative or arbitral judgment. 49. See Resolution For categories of predetermined travel, corresponding to a religious obligation, useful to negotiations, or for a judicial process. 50. However, this idea is addressed in a paragraph on travel bans. And, later, in several resolutions, its implementation is provided: these are exceptions to travel bans, relating to persons on sanction lists for activities relating to terrorism, and wanting to travel for religious reasons. The other reasons for exceptions to travel bans, listed above (negotiations, judicial process), are not linked to humanitarian issues

10 Council: Decides that for a period of twelve months from the date of this resolution, and without prejudice to humanitarian assistance programmes conducted elsewhere, the obligations imposed on Members States in paragraph 3 of resolution 1844 (2008) shall not apply to the payment of funds, other financial assets or economic resources necessary to ensure the timely delivery of urgently needed humanitarian assistance in Somalia, by the United Nations, its specialized agencies or programmes, humanitarian organizations having observer status with the United Nations General Assembly that provide humanitarian assistance, or their implementing partners. This is an example of sectorial humanitarian exemption based on the capacity of the stakeholders. This is the solution towards which we should be headed, and that the European Union seems to have chosen. B Working towards generalising exemptions by sector Since 2002, the European Union has strived to provide a framework for its members measures in terms of terrorism. The Directive of 15 March , which replaced the Framework Decision of seems to the CNCDH to be a particularly interesting document. Paragraph 37 of the Preamble of the Directive contains a safeguard clause for the application of humanitarian law in the event of conflict. In addition, paragraph 38 of the same preamble provides that the provision of humanitarian activities by impartial humanitarian organisations recognised by international law, including international humanitarian law, do not fall within the scope of this Directive. Here, the exemption is characterised by the fact that these are the activities of an impartial humanitarian organisation. This clause has two advantages. First, in terms of social philosophy, the EU demonstrates its trust in the humanitarian organisation sector, and therefore in civil society. Second, on a technical level, the scope of such an approach goes far beyond an exemption for humanitarian material. Indeed, the latter would be insufficient in order to allow humanitarian organisations to operate, for whom it is not enough to import goods, they must also import funds to pay their personnel, as well as various on-site expenses (rentals, purchases, etc.) 53. In addition, the passage of text in question goes far beyond the exemption referred to above to the benefit of humanitarian stakeholders in Somalia, which was a temporary exception in the operation of an embargo mechanism in place. Paragraph 38 of the Preamble of the Directive of 15 March 2017 sets out the scope of application of said Directive 54. The humanitarian activities carried out by impartial humanitarian organisations appear to be completely - and definitively - excluded from measures to be taken against the financing and provisioning of terrorism. And although this phrase is contained in the preamble - and not in the body of the text itself -, it still sets out the intervention framework for State measures to be taken. The CNCDH strongly applauds this text. Recommendation No. 8: The CNCDH recommends that the United Nations Counter-Terrorism Strategy, repeating the wording contained in Para. 38 of the Directive of the European Union of 15 March 2007, be reviewed. Recommendation No. 9: The CNCDH recommends that France transpose the European Union Directive or take the opportunity on the next review of counter-terrorism laws to explicitly introduce the exemption and safeguard clauses provided for by said Directive. Recommendation No. 10: The CNCDH recommends that the Government clarify and simplify access by humanitarian organisations to the exemptions that exist in the field of banking transactions. This approach being that taken by the European Union, States who are not EU-members are not concerned by this Directive. In order to ensure better protection for humanitarian organisations - and this for humanitarian action and those in need -, this exemption by sector scheme should be adopted at international level. Recommendation No. 11: The CNCDH encourages France to prompt the United Nations Security Council to systematically introduce IHL safeguard and sectorial humanitarian exemption clauses in its resolutions on counter-terrorism. 51. 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. In this directive s development process, one point directly concerned the topic of humanitarian exemption. Having initially been set aside, a clause was ultimately included in the directive, as urged by the ICRC delegation to the European Union. Indeed, the European Parliament had expressed reservations on the inclusion of such a clause, as it feared that it would be instrumentalised by certain malicious organisations. Interview with Mr. Stephane Kolanowski and Ms. Hilde Sagon before the CNCDH, on 16 January Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism. 53. See paragraph 20 of this opinion. 54. The provision of humanitarian activities by impartial humanitarian organisations recognised by international law, including international humanitarian law, do not fall within the scope of this Directive