Abstract
Since the nineties and more particularly after September 11, international and national anti-terrorism legislations have reinforced the range of measures and sanctions used to fight designated terrorist organisations also called proscribed groups. Many of the proscribed groups, such as Al Qaeda or the Islamic State of Iraq and the Levant (hereinafter ISIL), are also parties to non-international armed conflicts (hereinafter NIACs). As such, under Ius in Bello, they have similar rights and responsibilities than state parties, including the positive obligation to provide medical care to the wounded and sick. The right of the wounded and sick to be collected and cared for is part of the fundamental principles of international humanitarian law (hereinafter IHL) and, with other provisions of common article 3 to the Geneva Conventions “reflects elementary considerations for humanity” . Yet, anti-terrorism legislations, and in particular the one adopted and implemented by the United States of Americas (hereinafter the US), challenge this fundamental principle. The provision of medical support to or through designated terrorist entities is not strictly excluded from acts criminalized by the US anti-terrorism legislation. Academics and the humanitarian community have in several occasions raised the negative humanitarian impact of the US legislation on civilians trapped in conflicts zones controlled by designated terrorist organisations and the legal risk faced by humanitarian actors operating in these situations. This article studies the indirect effects of US anti-terrorism legislation on the right of the wounded and sick in NIACs to receive medical care by showing how it can limit non-state parties’ ability to provide such care. It identifies inconsistencies of US anti-terrorist legislation with IHL and suggest ways to remedy them.
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- 1.
Naz K. Modirzadeh and others, ‘Humanitarian engagement under counter-terrorism: a conflict of norms and the emerging policy landscape’ (September 2011) International review of the Red Cross, Volume 93 Number 883, 6.
- 2.
18 USC §2339A (b) (1).
- 3.
The IEEPA related Executive Order 13 224 specifically precludes this humanitarian exemption by prohibiting to donate humanitarian relief, including medicines, to any person designated by, or later included within, the order.
- 4.
US anti-terrorist legislation overlaps with bodies of Intenational law that apply to armed conflicts such as IHL, IHRL and ICL for four main reasons: international law applies to most type of offences crimalized by US anti-terrorist legislation;armed conflict situations are not excluded from situations to which US anti-terrorist laws apply; US anti-terrorist laws have an extra- territorial jurisdiction; And US military operations take place at global scale.
- 5.
For the full list of the Secretary of State: http://www.state.gov/j/ct/rls/other/des/123085.htm. Last visited 10.04.15.
- 6.
Yet, medical personnel belonging to armed groups, can as any individual suspected of membership to such groups, be prosecuted if required by US national law or by the national law of the state in which the conflict takes place Being a party to a NIAC does not affect the legal status of armed groups under national law as stipulated by Art 3 Common to the Geneva Conventions.
- 7.
Art 1 Common to the Geneva Conventions: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances”.
- 8.
A. Clapham, “The rights and responsibilities of Armed Non-State Actors: the legal landscape and Issues surrounding Engagement, Geneva, ADH, 2010, p 12.
- 9.
Djihadology.net, ‘Health services in the Islamic State – Wilayath al-Raqqah’ (Video, April 2015) http://jihadology.net/2015/04/24/new-video-message-from-the-islamic-state-health-services-in-the-islamic-state-wilayat-al-raqqah/> accessed 30 May 2015.
- 10.
ISIL is involved in several NIACS against various armed groups and states, including the Syria, Iraq and the states forming the international coalition conducting air strikes against IS in these two countries.
- 11.
United States v. Shah, Sabir474 F. Supp. 2d 492 (S.D.N.Y. 2007); United States v. Farhane 634 F.2d 127 (2d Cir. 2011).
- 12.
Idem.
- 13.
United States Court of Appeals,Second Circuit.UNITED STATES of America, Appellee, v. Abdulrahman FARHANE, also known as “Abderr Farhan,” and Rafiq Sabir, Defendants-Appellants (Sabir’s case). Docket Nos. 07–1968-cr (L), 07–5531-cr (CON).Decided: February 4, 2011, Part I.A.
- 14.
Idem.
- 15.
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104–132, § 301(a)(7), 110 Stat. 1214, 1247.
- 16.
Holder v. Humanitarian Law Project, U.S. Supreme Court’s decision.
- 17.
Sabir’s case.
- 18.
ICRC, ‘Background document’, 11.
- 19.
art 7, (2) APII.
- 20.
Kate Mackintosh (…), ‘Study of the Impact of Donor Counter Terrorism Measures on Principled Humanitarian Action’.
- 21.
18 U.S.C. 2339B (h)
- 22.
Holder V. HLP, Reply Br. 15.
- 23.
See Williams, 128 S. Ct. at 1845; Village of Hoffman Estates, 455 U.S. at 494–495, 497–498.
- 24.
Jutin A. Fraterman, ‘Criminalizing humanitarian relief’, 408.
- 25.
Boim v. HLF, 549 F.3d 685, 699 (7th Cir.2008) (en banc).
- 26.
United States v. Shah, 474 F. Supp. 2d 492 (S.D.N.Y. 2007); United States v. Farhane 634 F.2d 127 (2d Cir. 2011).
- 27.
Naz K. Modirzadeh and others, ‘Humanitarian engagement under counter-terrorism’, 630.
- 28.
Idem.
- 29.
United States Code Annotated Title 50. War and National Defense Chapter 35. International Emergency Economic Powers, section 3 (b) (2).
- 30.
Idem.
- 31.
Executive Order 13224, section 4.
- 32.
BOIM v. HLP. Nos. 05–1815, 05–1816, 05–1821, 05–1822, United States Court of Appeals, Seventh Circuit. Decided December 3, 2008.
- 33.
U.S. Supreme Court’s decision in Holder v. Humanitarian Law Project.
- 34.
Washington Legal Foundation Brief, Boim vs Holy Land Foundation for Relief and Development (Boim V.HLF), US court of appeals for the Seventh Circuit (21 August 2008) N° 00 C 2905.
- 35.
GX 906 T at 49, 69, United States v. Shah, Sabir474 F. Supp. 2d 492 (S.D.N.Y. 2007); United States v. Farhane 634 F.2d 127 (2d Cir. 2011).
- 36.
Sam Adelsberg and others, ‘The Chilling Effect of the “Material Support” Law on Humanitarian Aid: Causes, Consequences, and Proposed Reforms’, (2012) Article prepared in connection with International Law and Foreign Affairs, a course at Yale Law School, 25 <http://webcache.googleusercontent.com/search?q=cache:RiZNYf5Hm80J:harvardnsj.org/wp-content/uploads/2013/01/Vol-4-Adelsberg-Pitts-Shebaya.pdf+&cd=1&hl=en&ct=clnk&gl=ch> accessed 31 May 2015.
- 37.
Art 3, (1) APII.
- 38.
Art 33, GCIII.
- 39.
Art 10, APII; rule 26 CIHL.
- 40.
ICRC, ‘Safeguarding the provision of health care’, Respect for health care personnel, Case Study 2.
- 41.
Art 9, AP II; rule 25 CIHL.
- 42.
Art 8, APII; rule 110 CIHL.
- 43.
Art 1, APII Commentaries p. 1433, para. 4714.
- 44.
Art 7 APII and its commentaries, rule 101 CIHL.
- 45.
‘Strengthening compliance with international humanitarian law: The work of the ICRC and the Swiss government’ (Article, 1 May 2015) (ICRC website) < https://www.icrc.org/en/document/strengthening-compliance-international-humanitarian-law-ihl-work-icrc-and-swiss-government> accessed 30 May 2015.
- 46.
Article VI of the U.S. Constitution states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”.
- 47.
See United States v. Noriega, 808 F. Supp. 791, 803 (S.D. Fla. 1992) (ordering the Attorney General and the Bureau of Prisons to set sentencing keeping in mind “the importance to our own troops of faithful and, indeed, liberal adherence to the mandates of Geneva III”); [FN235]. Noriega, 808 F. Supp. at 802-03.; The Conventions apply to “armed conflict,” internal and international. See Common Article 2, supra note 1 (“[T]he present Convention shall apply to all cases of declared war or of any other armed conflict which may arise ...”).
- 48.
Jutin A. Fraterman, ‘Criminalizing humanitarian relief’, p456–451.
- 49.
HLP v. U.S Department of Justice, 352 F.3d 382, 404 (2003).
- 50.
Restatement (Third) of Foreign Relations Law § 111 Cmt. H(1987).
- 51.
UN Security Council, Resolution 1267 (1999) Adopted by the Security Council at its 4051st meeting on 15 October 1999, 15 October 1999, S/RES/1267 (1999), art 4 (a) and (b).
- 52.
See ICRC report on the treatment of fourteen “high value detainees” in CIA custody, (Report, February 2007).
- 53.
Art 33, GCIII.
- 54.
For more information see, SASSOLI, Marco ‘Taking Armed Groups Seriously: Ways to Improve Their Compliance with International Humanitarian Law’ (2010) Journal of International Humanitarian Legal Studies,, vol. 1, no. 1, p. 5–51.
- 55.
See ICRC report on the treatment of fourteen “high value detainees” in CIA custody, (Report, February 2007).
- 56.
‘Obama: CIA torture methods brutal and wrongonly helped Al Qaeda recruit new fighters» Al Jazeera website (December 2014) < http://www.aljazeera.com/news/americas/2014/12/obama-cia-torture-methods-brutal-wrong-2014121045120833682.html> accessed 30 May 2015.
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Executive Order 13491 – Ensuring Lawful Interrogations, Barack Obama US President (January 22, 2009). https://www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogations, accessed 30 May 2015.
- 58.
Both reports will be released in June 2015.
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‘Safeguarding the provision of Health Care’, ICRC, see sections dedicated to humanitarian problems in relation to health care personnel, health care facilities and the wounded and sick and medical transports.
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Annexes
Annexes
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1.
ICRC, ‘Safeguarding the Provision of Health Care: Operational Practices and Relevant International Humanitarian Law concerning Armed Groups’ (Forthcoming).
-
2.
ICRC, ‘Background document to the Expert workshop on Health Care in Danger and Armed Groups’ (June 2014), (ICRC background document) Circulation restricted.
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3.
The CAERUS Project, ‘Dynamics of provision of health services by non-state armed groups – an analysis of the literature’ (27 February 2015) (The Caerus Project, ‘Dynamics of provision of health services’) Deliverable number 2.2.
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Palama, A. (2022). Impact of US Anti-Terrorism Legislation on the Obligation of Non-state Armed Groups to Provide Medical Care to the Wounded and Sick Under IHL. In: Messelken, D., Winkler, D. (eds) Health Care in Contexts of Risk, Uncertainty, and Hybridity. Military and Humanitarian Health Ethics. Springer, Cham. https://doi.org/10.1007/978-3-030-80443-5_4
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