The Challenges Posed to Principled Aid by International and Australian Counter-Terrorism Legislation
The principles of impartiality and neutrality are key foundations in the delivery of humanitarian assistance. However a tension is arising between international and Australian counter-terrorism legislation and the delivery of principled humanitarian assistance. This article explores the legal mandate of impartial and neutral aid, and the structure of counter-terrorism legislation both internationally and in Australia, highlighting the tensions that arise. A number of subsequent recommendations are made in an attempt to resolve the tension.
The Place of Impartiality and Neutrality in International Humanitarian Law
Impartiality and neutrality are two of the seven Fundamental Principles of the International Red Cross and Red Crescent Movement (Red Cross), proclaimed in their current form at the 20th International Conference of the Red Cross in Vienna in 1965. The Red Cross defines impartial action as action that ‘makes no discrimination as to nationality, race, religious beliefs, class, or political opinions, [endeavouring] only to relieve suffering, giving priority to the most urgent cases of distress.’ The Red Cross undertakes action that allows it to be neutral and ‘enjoy the confidence of all,’ and does ‘not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature.’All action that the Red Cross undertakes aims to follow the seven Fundamental Principles and therefore the delivery of its humanitarian aid is solely on the basis of need, and has a neutral impact on those with authority.
Principled Aid and the International Committee of the Red Cross
The principles of impartiality and neutrality that underpin the International Committee of the Red Cross’s (ICRC) aid delivery arise out of International Humanitarian Law (IHL), specifically the Geneva Conventions. For decades, IHL has been the framework that has defined the roles of humanitarian actors in armed conflict, and has created a number of well-developed norms. There is a legal mandate for the ICRC to deliver impartial and neutral humanitarian assistance in situations of international armed conflict, as well as non-international armed conflict. Furthermore, the ICRC has a broader mandate through the Statutes of the Red Cross and Red Crescent Movements in other situations of violence, and indeed at all times.
Principled Aid and Humanitarian Organisations
The mandate to deliver humanitarian assistance under the principles of impartiality and neutrality is not unique to the ICRC but is part of a larger global framework. Major humanitarian organisations almost universally have the principles of impartiality and neutrality as core tenets of their work. While protections provided in the Geneva Conventions and their Additional protocols refer predominantly to states, non-state actors and the ICRC are also liable under this legal framework. By providing the circumstances under which humanitarian assistance must be allowed by either a state or a NSA, the provisions give legitimacy to humanitarian assistance that is of the same character and which is being provided by a humanitarian organisation that is abiding by the same conditions
International Counter-Terrorism Legislation
Before analysing the relevant international counter-terrorism legislation, it is important to note that delegates and officials of the ICRC and the UN have certain legal immunities. In the Australian context, an Australian Red Cross staff member can either be on an official contract with the ICRC or the International Federation of Red Cross and Red Crescent Societies (IFRC), a body which is made up of all the national Red Cross/Crescent societies, or work alongside the ICRC or IFRC while still technically being Australian Red Cross staff. It is only when an Australian Red Cross staff member is under contract with the ICRC that they would be considered an ICRC ‘delegate’ and enjoy legal immunities.
Thus, while the ICRC and the UN do not need to be legally concerned about contravening counter-terrorism legislation, this is a pressing concern for the IFRC, National Societies and NGOs, as by partnering with either the ICRC or the UN in their mandate to deliver impartial and neutral aid, humanitarian workers may be criminally liable under certain counter-terrorism laws.
United Nations Security Council Counter-Terrorism Resolutions
The United Nations Security Council (UNSC) has adopted two resolutions which aim to punish groups and individuals engaging in terrorist acts, UNSC Resolution 1267 and UNSC Resolution 1373. Due to the UNSC acting under authority of Chapter VII of the UN Charter, member states have an obligation to accept them and carry out their provisions, including enacting domestic legislation if necessary. Therefore, these two resolutions are hugely influential and have significant normative power within the global counter-terrorism framework.
United Nations Security Council Resolution 1267
Resolution 1267 is a counter-terrorism sanctions regime concerned with the financing of terrorism, and specifically calls for member states to freeze funds and financial resources to ensure that they are not made available to a terrorist group. Initially the resolution was concerned only with the Taliban, but after 9/11 the resolution was then expanded to also incorporate al-Qaeda. The 1267 Committee places individuals associated with al-Qaeda and the Taliban on designated lists. This Committee ensures that UN member states are imposing sanctions, such as travel bans, arms embargoes and asset freezes on any listed individuals or groups, as well as preventing entry of any listed person through their territories. Each member-state is obligated to have sanctions regimes against the individuals and entities proscribed by UNSC Resolution 1267 as a baseline, and it is up to the discretion of the state as to whether they create more substantial designated lists. While UNSC Resolution 1267 does allow for exemptions to the sanctions on a case-by-case basis, there is no automatic exemption for the provision of humanitarian aid.
United Nations Security Council Resolution 1373
Resolution 1373 is concerned with the prevention of terrorism, and criminalises all forms of ‘services’ and ‘support’ to persons or entities involved with terrorist acts. The influential nature of the UNSC resolutions has led to some domestic legislation being broadly worded and interpreted to include humanitarian activity that involves contact with entities or individuals associated with terrorism. Australian counter-terrorism legislation is an example of this issue. No UN list is associated with Resolution 1373, and it is up to each member state’s discretion to decide what organisations and individuals to whom Resolution 1373 applies.
Therefore, Resolution 1373 is far broader in scope and can be used by a state to justify action against what it perceives as falling within the parameters of the resolution. Furthermore, no exemption for humanitarian actions and assistance is located within UNSC Resolution 1373. This is concerning, as due to the influential nature of the UNSC resolutions this exclusion of a humanitarian exemption has led to states omitting humanitarian exemptions in their own domestic legislations, which is where the conduct of humanitarian organisations is ultimately liable.
The Impact of Australian Counter-Terrorism Legislation in Impartial Aid
Australian Counter-Terrorism Environment
In the aftermath of 9/11 and in response to UNSC Resolution 1373, Australia passed new counter-terrorism legislation in 2002, which brought together the few varied and disparate laws relating to terrorism already in existence. As of 2015, there were 64 pieces of counter-terrorism legislation in Australia. A new and entrenched reality is emerging, one where protection and security from terrorism is at the forefront of the public and legal space, where counter-terrorism laws are not short-term responses to security threats, but are temporal and generalised laws.
Providing Training to a Terrorist Organisation
The first criminal activity that is of relevance to humanitarian organisations is providing training to a terrorist organisation. According to the Australian Criminal Code, a person commits an offence if they ‘intentionally provide training’ to a terrorist organisation. The fault element of this offence is ‘recklessness,’ and the penalty is 25 years imprisonment. A terrorist organisation is either one that has been listed already by the government, or a group that as a result of a criminal trial is found to be terrorist organisation. Crucially, the training does not need to benefit or contribute to the carrying out or planning of a terrorist act. Along with this, the term ‘training’ is not defined and therefore it is unclear as to what could be considered ‘training’. While the criminalisation of military training and related activities is understandable, many other types of training provided through legitimate humanitarian action could fall foul of this legislation. This raises issues in regard to the delivery of humanitarian aid under the principle of impartiality. Humanitarian organisations often provide medical training as well as IHL dissemination as part of their humanitarian assistance. Yet according to this legislation, this training could be interpreted to make humanitarian workers criminally liable under Australian law.
The lack of clarity as to what could constitute ‘training’ under Australian counter-terrorism legislation was considered by the Supreme Court of Victoria when it found a Sydney doctor who provided medical training to medical students in Sri Lanka in the wake of the 2004 Tsunami guilty of providing training to a terrorist organisation, as the students (unbeknown to him) were members of the Liberation Tigers of Tamil Eelam (LTTE).
Clearly, Australian counter-terrorism legislation relating to training a terrorist organisation can be in direct contravention to providing impartial aid, as aid can include such action as medical training and health and hygiene training to communities.
Providing Funds to a Terrorist Organisation
Under the Criminal Code (Cth), it is also an offence to make funds available to a terrorist organisation. This is relevant to humanitarian organisations as in some scenarios it may be necessary to pay for access into an area controlled by a listed organisation, as a means to provide impartial aid. This is a legitimate action if it is the only way to provide impartial aid to a population that is in dire need, and a consequentialist calculation justifies paying a few hundred dollars to a terrorist organisation in order to potentially save lives. An important point to consider is whether providing any form of aid is effectively providing funds to a terrorist organisation, or ‘fungibility theory.’ This explores the idea that providing a community under the control of a terrorist organisation with aid, thereby allowing the terrorist organisation to save the money it may have needed to buy food, supplies and so on, is effectively handing money over to the organisation. Humanitarian organisations are concerned about this issue, and whether the money a designated terrorist organisation saves due to aid can be used for other means. At present, there is no legal precedent in Australian law that treats money and humanitarian aid as fungible.
Thus, there is also a tension between the criminalisation of providing funds to a terrorist organisation and the delivery of impartial aid, as certain actions by humanitarian organisations that may be used as a means to provide aid for populations in need could be in contravention of Australian law.
Australian Citizenship Amendment Bill 2015 and the Cessation of Citizenship
In June of 2015, the Australian Government introduced the first reading of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 to the House of Representatives. This bill both broadened the scope of humanitarian action that was potentially criminal under counter-terrorism legislation, as well as significantly increased the punishment for violating existing laws. The bill proposed to cease an individual’s Australian citizenship if they were convicted of either providing training or funds to a terrorist organisation, and the person was also a national or a citizen of a country other than Australia. This was concerning for humanitarian organisations and workers in the field because, as we have seen, there are legitimate humanitarian actions that can potentially fall foul of the counter-terrorism laws that the bill referred to.
The most concerning aspect for humanitarian organisations was that in the bill, a dual citizen, or national of another country, ceased to be an Australian citizen if they were ‘in the service of a terrorist organisation’. ‘In the service of’ was defined to include such actions as providing medical support, as well as providing money or goods, and services. Thus in the first reading of the bill, an individual (who was a dual citizen, or national of another country) who had responded to need and had given medical assistance in an impartial manner, and it turned out that assistance was towards a listed organisation, could lose their Australian citizenship.
This incorporation of ‘medical support’ raised a number of concerns with stakeholders, and in the final version of the bill that passed both houses and became law in December 2015, the provision of neutral and independent humanitarian assistance was explicitly defined as not being ‘in the service of’. However, a dual citizen or national of another country can still lose their Australian citizenship for being found guilty of providing either training or funds to a terrorist organisation.
The Impact of Australian Counter-Terrorism Legislation on Neutral Aid
Inconsistent Designation of Terrorist Organisations
The designated lists created by states, in order to prevent terrorism and implement UNSC Resolution 1267 and UNSC Resolution 1373, are different in each individual state. This is a result of the differing specific and regional threats faced by states which require different designated lists in order to fulfil their national security concerns. Thus, the designated lists of individuals and entities associated with terrorism are created at the discretion of the governments of each state, making the decision a political one, subject to the varying considerations and definitions of what constitutes a ‘terrorist’ or a ‘terrorist organisation.’ This politicised nature of states’ designated lists is putting pressure on the ability of humanitarian organisations to act neutrally.
Nineteen of the twenty terrorist organisations on Australia’s designated list have an Islamic ideology. While this could be coincidental, a concern to neutrality does present itself upon further analysis. Non-Islamic groups such as the Revolutionary Armed Forces of Colombia, the Shining Path of Peru, and the Revolutionary People’s Liberation Party-Front of Turkey are not listed, despite engaging in acts that warrant their listing as terrorist organisations under Australian law. Groups that engage in similar acts and have an Islamic ideology are listed, such as Boko Haram. These laws are reflecting a politicised position and concept, and the restriction of humanitarian aid from specific designated groups is not consistent with humanitarian aid being neutral.
Conditions in Contractual Obligations with Donors
Alongside Australia’s counter-terrorism legislation, stricter contractual obligations within the funding arrangements between the Australian government and humanitarian organisations are another issue of concern for the delivery of neutral aid. The most concerning aspect of these contracts is the requirement of aid organisations to conduct security checks on organisations and individuals to which the aid will be delivered, to ensure that they do not provide any sort of resources or support to individuals or organisations associated with terrorism. This is because the effect of these contractual obligations and their required security checks has been that humanitarian organisations are viewed as closely associating with and as partners with DFAT, and not as neutral organisations.
Neutrality is imperative for the security of a humanitarian worker on the ground as trust is imperative to gain access to populations in need and to provide impartial aid. Unfortunately, the way that Australian counter-terrorism legislation is currently constructed is reinforcing and perpetuating this reduction of perceived neutrality.
The Resultant Effects on Funding
The fundamental tension between the delivery of principled aid and counter-terrorism legislation, and the legal ambiguity that enshrouds the humanitarian sector, has led to a tangible decrease in funding towards humanitarian organisations. This significantly detracts from the ability of humanitarian organisations to deliver principled aid, as the ripple-on effect of the reduction of funding from states due to their concerns of legal liability is that humanitarian organisations focus their attention in areas where they are not required to interact with NSAs.
The 2011 Somali famine is one example where there was a reduction of funding for humanitarian aid due to its tension with counter-terrorism legislation. As a result of UNSC sanctions against al-Shabaab, US$50 million of humanitarian aid going into Somalia was suspended by the US, and US organisations were hesitant to provide funding in an environment where there was the possibility of prosecution under counter-terrorism legislation.
The tension between counter-terrorism legislation and the delivery of principled aid has not only led to a decrease in funding from donors, but has led to a ‘chilling effect,’ where humanitarian organisations cut back their own activities, opting out of scenarios with NSAs which they fear may make them criminally liable against certain counter-terrorism legislation. This opting out of certain scenarios by humanitarian organisations, due to the legal ambiguity of whether they could be criminally liable, detracts from the principle of impartiality.
International and Australian counter-terrorism legislation is significantly restricting the ability of humanitarian organisations to provide aid impartially, as well as detracting from the perceived neutrality of humanitarian organisations. Australian counter-terrorism laws currently criminalise actions that humanitarian organisations have a legal mandate to carry out as a means to deliver impartial and neutral humanitarian assistance.
Caleb Althorpe is a recent graduate of the Bachelor of International Studies Program and is currently undertaking Honours in Politics and International Studies, both at the University of Adelaide.
 International Committee of the Red Cross (1979) The Fundamental Principles of the Red Cross: Commentary, https://www.icrc.org/eng/resources/documents/misc/fundamental-principles-commentary-010179.htm Accessed 16 August 2015. The 20th International Conference of the Red Cross bound together the National Red Cross and Red Crescent Societies, the International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies. The seven Fundamental Principles are: Humanity, Impartiality, Neutrality, Independence, Volunteer Service, Unity, and Universality.
 International Committee of the Red Cross, above n 1.
 International Committee of the Red Cross, above n 1.
 International Committee of the Red Cross (1986 [amended 2006]) Statutes of the International Red Cross and Red Crescent Movement, Art. 3: §1.
 Harvard University Program on Humanitarian Policy and Conflict Research (HPCR) (2011) “Humanitarian Action Under Scrutiny: Criminalizing Humanitarian Engagement” in HPCR Working Paper (February 2011), 4.
 Geneva Conventions of August 12 1949, 75 UNTS 287 (entered into force 21 October 1950), Geneva Convention IV, Art. 27 & 15; See also: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978), Art. 7(2).
 Geneva Conventions of August 12 1949, above n 6, Common Article 3 to the Geneva Conventions.
 International Committee of the Red Cross, Statutes of the International Red Cross and Red Crescent Movement, Art. 5: §2(d) & §3.
 One instance of an NGO not having neutrality as a core principle is Médecins Sans Frontières, which views neutrality as occasionally impeding justice. See: Plattner, Denise (1996) “ICRC Neutrality and Neutrality in Humanitarian Assistance” in International Review of the Red Cross, Vol. 36, No. 311, p. 161.
 Mackintosh, Kate (2000) “The Principles of Humanitarian Action in International Humanitarian Law” in Overseas Development Institute: Humanitarian Policy Group Report 5, p. 4.
 Rona, Gabor (2004) “The ICRC’s Status: In a Class of its Own,” International Committee of the Red Cross, https://www.icrc.org/eng/resources/documents/misc/5w9fjy.htm Accessed 11 October 2015.
United Nations General Assembly (1946) Convention on the Privileges and Immunities of the United Nations, Article V §18(a) & Article VI §22(b).
 Australian Red Cross staff member, Interviewed on 4 November 2015.
 United Nations Security Council, S/RES/1267, 15 October 1999.
 United Nations Security Council, S/RES/1373, 28 September 2001.
 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Art. 25 & 103.
 United Nations Security Council, above n 15, §4(b).
 United Nations Security Council, S/RES/1390, 28 January 2002, §2.
 Modirzadeh, Naz K. et al (2011) “Humanitarian Engagement Under Counter-Terrorism: A Conflict of Norms and the Emerging Policy Landscape” in International Review of the Red Cross, Vol. 93, No.883, p.637.
 United Nations Security Council, above n 15, §4(b).
 International Committee of the Red Cross (2011) “International Humanitarian Law and the Challenges of Contemporary Armed Conflict” in 31st International Conference of the Red Cross Red Crescent, pp.51-52.
 Wynn-Pope, Phoebe et al. (2015) “Legislating Against Humanitarian Principles: A case study on the humanitarian implications of Australian counterterrorism legislation” in International Review of the Red Cross, p.10.
 Lynch, Andrew et al. (2015) Inside Australia’s Anti-Terrorism Laws and Trials. NewSouth Publishing: Sydney, p.3.
 Criminal Code Act 1995 (Cth), (‘Criminal Code’), §102.5.
 An individual is “reckless” if they are aware that there is some risk that an organisation is a terrorist organisation and they still provide training. See Criminal Code, above n 23, §5.4.
 Criminal Code, above n 23, §102.5.
 Criminal Code, above n 23, §102.2(2).
 Mackintosh, Kate & Patrick Duplat (2013) Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action, p.23.
 Wynn-Pope et al., above n 21, p.17.
 Criminal Code, above n 23, §102.6.
 Wynn-Pope et al., above n 21, pp.11-12.
 Wynn-Pope et al., above n 21, pp.24-25.
 Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth) (First Reading) (‘Australian Citizenship Amendment’), §5(3)(c).
 Australian Citizenship Amendment (First Reading), above n 32, §4(1)(b)(ii).
 Australian Citizenship Amendment (First Reading), above n 32, Explanatory Memorandum §56.
 For a full account of the community’s concerns see: Parliamentary Joint Committee on Intelligence and Security (2015) Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, §4.98.
 Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth) (As Passed) (‘Australian Citizenship Amendment’), §4(4)(c).
 Australian Citizenship Amendment (As Passed), above n 36, §5(1)(a)(iii).
 Burniske, Jessica et al (2014) “Counter-Terroris Laws and Regulations: What aid agencies need to know” in Humanitarian Practice Network Paper, Vol.79, p.4.
 An example of the discrepancy in designated lists is that the US list has 58 designated terrorist organisations, while Australia’s list has 20 designated organisations.
For the US list of designated terrorist organisations, see: U.S. Department of State (Bureau of Counterterrorism) (2015) Foreign Terrorist Organisations, http://www.state.gov/j/ct/rls/other/des/123085.htm Accessed 15 September 2015; For the Australian list of designated terrorist organisations, see: Australian Government (Australian National Security) (2015) Listed Terrorist Organisations, http://www.nationalsecurity.gov.au/Listedterroristorganisations/Pages/default.aspx Accessed 15 September 2015.
 Australian Government (Australian National Security), above n 39. The Kurdistan Workers’ Party (PKK), is the sole organisation listed without an Islamic ideology, yet would have a demographic that is predominantly Muslim.
 The requirements for a group to be designated as ‘terrorist’ are outlined in: Criminal Code, above n 23, §100.1.
 Australian Government: Department of Foreign Affairs and Trade (2015) Australian NGO Cooperation Manual (ANCP), p.22.
 Wynn-Pope et al., above n 21, p22.
 Wynn-Pope et al., above n 21, p.23.
 HPCR, above n 5, p.34.
 United Nations Security Council, S/RES/1844, 20 November 2008.
 Bradbury, Mark (2010) “State-Building, Counterterrorism, and Licensing Humanitarianism in Somalia” in Feinstein International Center Briefing Paper (September 2010), p.12.
 Menkhaus, Ken (2012) “No Access: Critical Bottlenecks in the 2011 Somali Famine,” in Global Food Security, Vol. 1, No. 1, p.29.
 This issue has been raised by a number of commentators and organisations, see:
Modirzadeh et al, above n 18, p.644; Metcalfe-Hough, Victoria et al (2015) “UK Humanitarian Aid in the Age of Counter-Terrorism: Perceptions and Realities” in HPG Working Paper (March 2015), p.5.
International Committee of the Red Cross (2015) International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, p.51; United Nations Special Rapporteur on Protecting Human Rights While Countering Terrorism (2010) Press Conference by Special Rapporteur on Protecting Human Rights While Countering Terrorism, http://www.un.org/press/en/2010/101026_Scheinin.doc.htm Accessed 10 October 2015.