Photo credit: United Nations Photo, “Permanent Home of the United Nations,” Flickr, CC BY-NC-ND 2.0.
In this section, we highlight central elements of states’ response to terrorism. Terrorists range from individual lone-offender attackers, to networks of organizations with shared normative commitments, to rebel groups seeking to supplant governing authorities, to state “sponsors” of terrorism. Legal definitions of terrorists increasingly encompass not only those who conduct terrorist acts but also those who provide direct or indirect support to those perpetrators.
In sum, to counter these diverse perceived threats, states draw on a growing collection of legal frameworks, administrative tools, cooperation mechanisms, forcible measures, surveillance systems, and funding streams. A key element cutting across these sectors is the prohibition of diverse forms of support and resources to terrorists.
A hybrid war-and-policing model underpins these efforts. The policing dimension draws on the traditional objectives of the criminal law system, including deterrence, incapacitation, rehabilitation, and retribution, mixed with trans-border interdiction and cooperation between states.[1] The war dimension adds lethal targeting and security detention.
Conventional and Customary Definitions of Terrorism
Terrorism has been a matter of international concern since the 1930s.[2] Yet the near decade and a half following the attacks of September 11, 2001 in the United States has occasioned a groundswell of support for increasingly robust anti-terrorism agendas. Nonetheless, despite its relatively long history and these recent developments, the generic term terrorism—as a legal concept and a category of offense to be regulated in international law—continues to evade definitional consensus.[3]
At the international level, states remain deadlocked on certain aspects of the scope of application of a comprehensive terrorism convention that would cover transnational offenses. Major points of disagreement concern, for instance, the concept of “state terrorism,” as well as whether to exclude from the convention’s scope acts already governed by IHL.[4]
Despite these difficulties in agreeing to a generic comprehensive terrorism convention, states have developed numerous international[5] and regional[6] counterterrorism agreements. These include a raft of sectoral anti-terrorism treaties, covering, for example, hijacking and hostage taking, as well as nuclear terrorism, terrorist bombings, and terrorist financing.
Some international and domestic courts have addressed customary international law developments concerning terrorism. In 2011, the Appeals Chamber of the Special Tribunal for Lebanon, for instance, ruled that an international crime of terrorism has emerged as a rule of customary international law—at least in peacetime,[7] though not yet in relation to situations of armed conflict.[8]
Security Council Anti-Terrorism Frameworks
In some key respects, the Security Council is at the apex of the international anti-terrorism system.[9] Delegated the capacity to decide binding security measures,[10] the Council has authored an array of anti-terrorism resolutions that all U.N. member states must carry out.[11] The far-reaching obligations entailed in those decisions generally trump obligations under other international agreements.[12] A swelling counterterrorism bureaucracy helps implement these measures.[13]
The Global Counter-Terrorism Strategy, which the U.N. General Assembly adopted in 2006 and which it reaffirmed most recently in 2014, complements these Security Council resolutions.[14] In the Strategy, all U.N. member states have agreed to a common strategic approach to fighting terrorism. That approach includes steps aimed at strengthening state capacity to counter terrorist threats and at better coordinating counterterrorism activities in the U.N. system.
General counterterrorism measures
Under the Resolution 1373 (2001) regime, the Security Council obliges member states to take diverse measures to combat terrorism.[15] These obligations range from denying terrorists safe havens to inhibiting the flow of weapons to terrorists, from suppressing terrorism financing to refraining from supporting those involved in terrorist acts.[16] The Security Council established the Counter-Terrorism Committee and, later, the Counter-Terrorism Executive Directorate to help implement this cluster of resolutions.[17]
Resolution 1373 imposes an obligation to ensure that any person who participates in the financing, planning, preparation, or perpetration of terrorist acts is brought to justice.[18] This obligation expressly encompasses any person who participates in “supporting” terrorist acts.[19]
States must ensure, moreover, that terrorist acts are established as serious criminal offenses in domestic laws and regulations and that the punishment of those acts duly reflects their seriousness.[20] Member states are thus required to bring their domestic legislation into conformity with these Council decisions. By imposing those obligations, the Security Council has been characterized as “legislating” a global net of legal interdiction.[21]
Sanctions against (associates of) al-Qaeda
A distinct, though sometimes overlapping,[22] cluster of Security Council counterterrorism measures currently directed against al-Qaeda and its associates was born with Resolution 1267.[23] Previously, these measures were (also) directed against individuals and entities associated with the Taliban.[24] Nearly two-dozen resolutions have followed in its path.[25] These decisions oblige member states to impose an asset freeze, an arms embargo, and a travel ban on designated individuals and entities associated with al-Qaeda.[26] The al-Qaeda Sanctions Committee, which is supported by the Analytical Support and Sanctions Monitoring Team, designates individuals and entities for inclusion on the list.[27] An Ombudsperson receives requests from designees seeking to be removed from the list and makes (non-binding) recommendations for retaining the listing or for de-listing.[28]
The Council’s definition of what constitutes being “associated with” al-Qaeda is strikingly broad. As could be expected, the concept encompasses traditionally recognized offenses, such as selling arms to and recruiting for al-Qaeda.[29] Yet, in a residual category, the concept also expressly sweeps in “otherwise supporting acts or activities” of al-Qaeda.[30] The definition is not limited to providing support to al-Qaeda as such; it also extends to providing support to “any cell, affiliate, splinter group or derivative” of al-Qaeda.[31]
Currently, the Security Council al-Qaeda sanctions list includes 229 individuals and 71 entities.[32] Many of those designees are involved in armed conflicts. The territories listed as the addresses or operations bases for entities designated under this regime stretch across over 30 states.[33] These Security Council-designated associates of al-Qaeda are diverse. They range, for example, from the Abu Sayyaf Group in the Philippines; to ISIS in Syria and Iraq; to the Eastern Turkistan Islamic Movement in Afghanistan, China, and Pakistan; to the Mouvement pour l’Unificiation et le Jihad en Afrique de l’Ouest in Algeria, Mali, and Niger.
Collateral counterterrorism resolutions
In addition to the measures under the al-Qaeda-sanctions and 1373 regimes, the Security Council combats terrorism collaterally in other clusters of resolutions. For instance, al-Shabaab is designated not only under the al-Qaeda sanctions regime but also as part of the Somalia arms embargo.[34] The Council has also, for example, requested the U.N. Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) to pass information to the al-Qaeda Sanctions Committee and the Analytical Support and Sanctions Monitoring Team.[35]
Exemptions and limiting conditions
The two main clusters of Security Council counterterrorism resolutions outlined above—the 1373 and 1267/1989 regimes—contain some exemptions and saving clauses. These limitations are of either a broad or a specific character. An example of the former is where the Council recalls states’ general obligation to comply with all “relevant” bodies of international law in countering terrorism. And an example of the latter is where the Council stipulates expressly that states must discharge a particular counterterrorism obligation in conformity with IHL. Only with respect to two specific counterterrorism obligations—prohibiting incitement to terrorist acts and suppressing certain forms of support to foreign terrorist fighters—has the Council expressly required that member states act consistently with IHL.[36]
Over all, these broad and specific limitations do not effectively exempt protections for impartial wartime medical care for terrorists from the reach of the sanctions. To recall, such protection would be offered at least under some IHL sources under some conditions. Understanding why these Security Council measures do not provide such effective exemptions requires digging into the text of the resolutions as well as the listed bases for designating associates of al-Qaeda.
At the most general level, the Security Council recognizes that effective counterterrorism measures and respect for human rights, fundamental freedoms, and the rule of law are “complementary and mutually reinforcing.”[37] It considers the latter protections an “essential part” of successful counterterrorism efforts.[38] The Council even recognizes that failure to comply with these and other international obligations is a factor that contributes to increased radicalization and fosters a sense of impunity.[39]
At times, moreover, the Security Council has reaffirmed the need to combat—in accordance with IHL and IHRL—threats to international peace and security caused by terrorist acts.[40] The simultaneous references to both bodies of international law illustrate the hybrid war-and-policing model underpinning the Council’s approach to counterterrorism. Less frequently, the Council has expressly reaffirmed that member states must ensure that any measures taken to combat terrorism, including the obligations in the relevant resolution, comply with their IHL obligations.[41] Yet the Council makes almost all of these references to IHL in preambular recitals. Of those IHL references that are in operative paragraphs, none directly conditions the respective resolution’s provision on impermissible “support” for terrorism.[42]
The Security Council has clarified that the al-Qaeda asset freeze does not apply to funds that the relevant state has determined to be necessary for basic expenses—such as “medicines and medical treatment”—of the designee.[43] Yet, somewhat paradoxically, in principle a person who provides medical care or medical supplies to someone associated with al-Qaeda or any of its derivatives remains susceptible to designation herself to the extent such care constitutes “otherwise supporting” al-Qaeda.[44]
To be clear, no individual or entity is listed under the Security Council’s al-Qaeda sanctions based solely on engaging in medical activities. But alongside more traditional grounds for a terrorist designation—such as funding those associated with al-Qaeda—the Sanctions Committee has referenced medical activities as a part of a basis for listing two individuals and two entities:
- In addition to co-founding, serving as second-in-command of, and recruiting and financing for Lakshar-e-Tayyiba/Jamaat-ud-Dawa (LeT/JuD) (among other things), Zafar Iqbal was the president of the LeT/JuD “medical wing;”[45]
- In addition to being a leader of the Rajah Solaiman Movement and planting a bomb in Manila Bay that killed over 100 people and wounded hundreds more on February 27, 2004 (among other things), Redendo Cain Dellosa provided medical supplies to members of the Abu Sayyaf Group;[46]
- In addition to providing financial and logistical support and arranging travel for (associates of) al-Qaeda (among other things), the al-Akthar Trust International was “secretly treating wounded members of Al-Qaida […] at the medical centers it was operating in Afghanistan and Pakistan;”[47] and
- In addition to providing financial and other assistance to, and receiving funding from, individuals associated with al-Qaeda (among other things), the Global Relief Foundation (GRF) had an employee who interacted with the Taliban—in particular, a GRF “medical-relief coordinator” traveled to Afghanistan and “had dealings with Taliban officials until the collapse of the Taliban regime.”[48]
These references suggest that the Sanctions Committee and, by extension, its supervisory body—the Security Council itself—view medical care and medical supplies as forms of impermissible support to al-Qaeda and its associates.
Domestic Proceedings against Medical Caregivers
At the domestic level, states have developed wide-ranging criminal and civil penalties against providing various forms of support to terrorist organizations.[49] Domestic legislations often prohibit financial transactions with terrorists as well as providing (or conspiring or attempting to provide) material support or resources to terrorists.[50] Like the Security Council and sometimes at its behest, states also designate individuals and entities as terrorists or as being associated with terrorism. (Under the U.N. Charter, the decisions in the aforementioned resolutions act as a floor of obligations that states may build upon but not go below.) The scope and consequences of these listings vary between jurisdictions. A growing number of states also prescribe extraterritorial application of their municipal anti-terrorism laws.[51] A rationale invoked to justify this claim of extraterritorial jurisdiction is the universal jurisdiction principle: acts of terrorism—wherever and against whomever they may be directed—threaten a global interest.[52] States also address terrorism through administrative regulations, for instance by barring asylum for supporters of terrorism.[53] Finally, some states have adopted humanitarian exceptions to counterterrorism laws.[54] Others have not.
States have instituted legal proceedings for supporting terrorists through medical activities in the course of armed conflicts. In the rest of this sub-section, we describe such proceedings in Peru, Colombia, and the United States.[55] This sample illustrates some of the diverse legal and policy interests states pursue under counterterrorism frameworks in domestic systems. Of the states profiled, only Colombia recognized that IHL established protections (however limited) for medical care for terrorists with respect to the armed conflict at issue. In the surveyed Peruvian and U.S. cases, the available records suggest that no IHL-based arguments were raised during the domestic proceedings. (However, IHL was referenced in the Inter-American Court of Human Rights in the case involving Peru.[56])
Colombia
For about half a century, the government of Colombia has been fighting the Revolutionary Armed Forces of Colombia (FARC), a non-state armed group designated as a terrorist organization by Colombia and a number of other states.[57] At various times, the FARC has exerted de facto control over territory in Colombia.[58]
Medical assistance to the FARC implicates the definitional boundaries of the crime of rebellion under Colombian law. That crime prescribes punishment for “those who, through the use of arms, intend to overthrow the national government or remove or modify the existing constitutional or legal regime.”[59] The crime of rebellion “constitutes a permanent act, meaning that a person responsible for rebellion will be criminally liable for the whole duration of his or her membership of the armed group.”[60] As for the subjective element, “the person must have been aware of the criminal purpose of the group to overthrow the legally constituted government, and must have had the intention to contribute to it.”[61]
Prior to the state becoming a party to AP II, Colombian jurisprudence had specified that medical care could fall under the criminal prohibition on rebellion for being part of or collaborating with an armed group. The rationale underlying that position was that
acts of rebellion not only refer to armed confrontations with members of the Security Forces, to the point that this type of crime also finds realisation in the mere belonging of the individual agent to the rebel group and, for this reason, a person may be assigned any activity, such as (…) medical care, or any other activity that does not relate directly to the use of weapons but that is a suitable instrument for the maintenance, strengthening or functioning of the rebel group.[62]
However, once Colombia became a party to AP II, in 1995, this prohibition on medical care became legally invalid. That is, the domestic law prohibition on medical care, previously an objective element of the crime of rebellion, was displaced with the ratification of AP II.[63] (Recall that AP II imposes an obligation not to punish any person for carrying out medical activities compatible with medical ethics, regardless of who may benefit from those activities.[64])
In 2007, the Plenary Chamber of Colombia’s Constitutional Court held that the obligation in AP II to respect medical duties “has attained customary status, mainly due to its impact on State practice and on conflicts in the last decades.”[65] That holding aligns with the view that, under Colombian law, in the context of the NIAC between the government and the FARC, “the crime of rebellion should not include the mere provision of medical services to members of the armed group that may require it[…].”[66] Yet where a physician provides medical services to members of the FARC “with a continuous and permanent intention to overthrow the existing government, then he could be held criminally liable for an act of rebellion.”[67]
Colombian jurisprudence has addressed that distinction in interpreting the scope of permissible medical care for the FARC. In a recent case, a medical professional provided medical and surgical services to members of the FARC. That professional also managed the FARC patients sent to a hospital in Bogotá, referring them to specialized clinics based on their medical condition.[68] The Colombian Supreme Court of Justice upheld the conviction. The Court reasoned that those referral services fell outside of the scope of medical activities protected by IHL (as incorporated into Colombian law) and into the crime of rebellion.[69]
This decision has been criticized for meeting neither the objective nor the subjective elements of the crime of rebellion.[70] The chief criticism concerning the former is that “the activity itself has been classified as being part of the health-care professional’s medical activities, and hence protected by IHL.”[71] The criticisms concerning the subjective element are two-fold. First, “the mere remission to legally constituted clinics and hospitals does not prove in itself the criminal purpose of intentionally aiming to overthrow the legally constituted government.”[72] And second, even where she knows of her patient’s membership in a criminal group, the health-care provider does not have the obligation to denounce it under Colombia law.[73] Rather, under Colombian law, the obligation to denounce the commission of crimes by individuals is limited to crimes of “great social impact,” such as genocide and torture.[74]
Peru
In the 1980s and 1990s, a NIAC pitted the government of Peru against multiple opposition groups.[75] One of those groups was a Maoist-inspired rebel faction, the Shining Path, which the government of Peru—as well as others, such as the United States—considered a terrorist organization. Alongside engaging in hostilities against the Shining Path, Peru instituted legal proceedings against individuals for providing various resources and services to, or collaborating with, the Shining Path.[76]
Amid the armed conflict, in July 1989, Peru became a party to AP II.[77] Recall that AP II prohibits punishing anyone who carries out medical activities compatible with medical ethics, regardless of who benefits therefrom.
Peru prosecuted physicians on terrorism-related offenses for supporting the Shining Path at least in part through medically related activities. Dr. María De La Cruz-Flores was one such physician. On March 27, 1990, a security guard detained Dr. De La Cruz-Flores at her clinic. A man allegedly tried to attach “pegatinas” (flyers or stickers) “inciting the population to an armed strike on March 28, 1990”—purportedly convened by the Shining Path—“to the walls of one of the washrooms on the third floor” of the clinic. Dr. De La Cruz-Flores allegedly covered up for that man by saying that he was her patient and that his package was hers.[78] In connection with those allegations, Dr. De La Cruz-Flores was kept in detention until July 26, 1990, when her unconditional liberty was granted. A May 18, 1992 judgment reissued orders for her arrest.[79] Those orders were apparently not acted upon, however, for over half a decade.
By then, Dr. De La Cruz-Flores had already been convicted, on other grounds, for the crime of terrorism in the form of acts of collaboration. That conviction arose out of an order issued in 1995 to open the pre-trial investigation against Dr. De La Cruz-Flores and others. In that order, a criminal court in Lima stated, among other things, that the defendants
were members of the Peruvian Community Party ([Shining Path]), and had provided medical attention, treatment and operations, supply of medicines and medical instruments for the care of criminal terrorist[s][;] acts [that] constitute the crime established and penalized in Article 4 of Decree Law No. 25,475 [crime of terrorism in the category of acts of collaboration].[80]
After making its way through the system,[81] the case against Dr. De La Cruz-Flores came before the Special Criminal Chamber of the Lima Superior Court of Justice. The Chamber was a “faceless” tribunal, in the sense that the identities of the judges were not made known to the defendant.
In its November 21, 1996 judgment in the proceedings against Dr. De La Cruz-Flores, that tribunal considered that:
“[The case file] contained documentation from 1992 […], which implicated the defendant, and in which she appears with the alias ‘Elíana’; one of these documents refers not only to meetings with the defendant, but there is also an analysis of her doctrinal and ideological evolution within the organization; there are descriptions of talks […] she has given, as a physician; that she has taken part in an operation as the assistant surgeon, and of problems within the health sector, all of which has been corroborated […] by the defendant, Elisa Mabel Mantilla Moreno, who, in the presence of the Prosecutor states that, on one occasion, she met with María Teresa De la [sic] Cruz on the orders of her ‘handler,’ to coordinate several matters; […] the same defendant […]accuses her of being one of the supportive elements responsible for providing treatment and performing operations; […]accuses her of participating in an operation on ‘Mario’ whose hand had been burned, which corroborates the foregoing; namely, that she took part as assistant surgeon in a skin-grafting operation; and that it is evident that the defendant has denied this during the proceeding so as to elude her criminal liability, which has been adequately proved.”[82]
Partly on that basis, the Tribunal convicted Dr. De La Cruz-Flores on the charge of the crime of collaboration with terrorists[83] and sentenced her to 20 years’ imprisonment.[84] Another court confirmed that judgment on June 8, 1998.[85]
Less than a year later, the charges stemming from the 1990 incident regarding the “pegatinas” reemerged. Based on that incident, on March 4, 1999, a court convicted Dr. De La Cruz-Flores of the unlawful association crime of terrorism and sentenced her to 10 years’ imprisonment.[86] However, a judgment of June 15, 2000 decreed an annulment of Dr. De La Cruz-Flores’s conviction for the unlawful association crime of terrorism. The annulment was due to the concurrence of criminal proceedings with the 1996 conviction for the unlawful collaboration crime of terrorism.[87]
The government continuously detained Dr. De La Cruz-Flores from March 27, 1996 to July 9, 2004, when she was conditionally released. By then, the armed conflict involving the Shining Path had ended. Yet terrorism-related proceedings against Dr. De La Cruz-Flores continued after her conditional release.[88]
Dr. De La Cruz-Flores pursued her case in the Inter-American Commission of Human Rights, which referred it to the Inter-American Court of Human Rights (IACtHR). Less than five months after her conditional release, that Court found that Peru’s proceedings against and its treatment of Dr. De La Cruz-Flores had violated numerous rights under the American Convention on Human Rights (ACHR).[89] In particular, Peru had violated the right to freedom from ex post facto laws; the right to personal liberty; the right to a fair trial; and the right to humane treatment.[90]
Much of the Court’s judgment turns on its holding that Peru had violated the principle of legality. That principle requires a person to be informed with sufficiently advanced and sufficiently specific notice of what acts and omissions are penalized before that person can be punished.
To understand the Court’s holding, it is important to recall the domestic anti-terrorism judgments against Dr. De La Cruz-Flores. She was convicted in 1996 for the crime of unlawful collaboration with terrorists and in 1999 for the crime of unlawful association with terrorists (annulled in 2000). She was not convicted for membership in a terrorist organization nor for failing to report possible terrorist acts. Peru, however, argued at the IACtHR, that “[t]he grounds for the judgment [against Dr. De La Cruz-Flores] have been duly explained and ‘it can be seen clearly that the defendant has been convicted for [belonging to the Shining Path]’.”[91]
According to the IACtHR, Peru had, in its November 21, 1996 judgment convicting Dr. De La Cruz-Flores of the crime of unlawful collaboration with terrorists,
violated the principle of legality: by taking into account as elements that gave rise to criminal liability, membership in a terrorist organization and failure to comply with the reporting obligation, but only applying an article that did not define these behaviors; by not specifying which of the behaviors established in article 4 of Decree Law No. 25,475 [prohibiting the crime of terrorism of acts of collaboration] had been committed by the alleged victim in order to be found guilty of the crime; for penalizing a medical activity, which is not only an essential lawful act, but which it is also the physician’s obligation to provide; and for imposing on physicians the obligation to report the possible criminal behavior of their patients, based on information obtained in the exercise of their profession.[92]
Part of the Court’s holding that Peru violated Dr. De La Cruz-Flores’s right to freedom from ex post facto laws is thus grounded in the penalization of medical activities.[93] The Court—whose jurisdiction comprises cases concerning the interpretation and application of the ACHR[94]—did not apply the relevant provisions of IHL as a matter of law. In dicta, however, the Court did recall (“for information only”) the provision in GC I stipulating that no one may be molested or convicted for having treated the wounded or sick in armed conflict. It also recalled in dicta the provisions in AP I and AP II prohibiting the punishment of any person for carrying out medical activities compatible with medical ethics in armed conflict.[95]
With respect to medical care for terrorists in armed conflict, the IACtHR’s judgment in De La Cruz-Flores v. Peru raises concerns over penalizing (otherwise) legitimate medical activities and compelling physicians to denounce their patients. The judgment also strikes strong cautionary notes about the need, at a minimum, for clarity in defining offenses related to wartime medical care for terrorists.
United States of America
The armed conflicts that gave rise to the anti-terrorism proceedings against medical professionals in Peru and Colombia occurred or are occurring primarily on the territory of the respective states. Those conflicts were or are of a non-international character (with the government engaged in hostilities against a non-state organized armed group).
The current U.S. administration considers the state to be engaged in an armed conflict with (or, at least, to otherwise be conducting military operations against) al-Qaeda, the Taliban, and “associated forces” in various territories around the world. As of March 2015, those publicly acknowledged locations included Afghanistan, Iraq, Libya, Somalia, and Yemen.[96] Thus, the Obama administration, like the Bush administration before it, considers itself on a war footing (of sorts) with al-Qaeda and al-Qaeda’s associated forces.
A majority of the U.S. Supreme Court reasoned, in its 2006 Hamdan decision, that the armed conflict between the state and al-Qaeda qualifies as a conflict not of an international character and is thus governed by Common Article 3.[97] The United States is not a party to AP I nor to AP II (it has signed both protocols but has ratified neither). Nor has it expressly indicated whether it considers all or some of the impartial medical-care provisions of those treaties to reflect customary rules of IHL binding in the ostensible armed conflict against al-Qaeda.[98] Since the United States suffered the attacks of September 11, 2001, few, if any, attacks have occurred on U.S. territory that may be considered under international law to form part of such an armed conflict. Thus most of the detention and lethal-force operations undertaken by the United States against al-Qaeda and its associated forces have taken place outside of U.S. territory.
A key element of the attempt by the United States to obviate terrorist threats is the use of lethal force against and the detention of al-Qaeda and its associated forces.[99] Another important element is instituting criminal proceedings against U.S. citizens and others for taking steps preparatory to or engaging in acts of support to terrorists. At times, those proceedings have been based on attempts to provide impermissible support to al-Qaeda or ISIS in the form of medically related activities (among others).[100] We highlight two such criminal proceedings below. We also note a civil action that occurred between private parties and that raised some similar legal theories.
U.S. v. Sabir
The federal criminal proceedings against Dr. Rafiq Sabir—a New York-licensed physician specializing in emergency medicine—arose alongside the prosecution of other defendants, including his friend, Tarik Shah. On December 6, 2006, a grand jury returned a fourth superseding indictment against Dr. Sabir, charging him with violations of 18 U.S.C. § 2339B: namely, conspiring to provide, and providing and attempting to provide, “material support or resources” to al-Qaeda, a designated Foreign Terrorist Organization, in the form of “medical support to wounded jihadists.” (Section 2339B applies whether the conduct was committed within the United States or extraterritorially,[101] and it applies irrespective of whether the violation is committed by a U.S. national or a non-national.[102])
In 2001, the Federal Bureau of Investigation (FBI) began an investigation of Shah.[103] The FBI was concerned about the possible transfer of money to insurgents in Afghanistan.[104] A confidential FBI informant known as “Saeed” cultivated a friendship with Shah. Shah was “recorded speaking openly about his commitment to jihad (holy war) in order to establish Sharia (Islamic law) and about his wish to provide ‘deadly and dangerous’ martial arts training to mujahideen (jihad warriors).”[105] During these conversations with an FBI informant, Shah identified Dr. Sabir as his “partner.”[106] On March 3, 2004, the informant and Shah traveled to Plattsburgh, New York. There, the informant introduced Shah to an undercover FBI agent, Ali Soufan, posing as a recruiter for al-Qaeda.[107]
In a series of meetings, Shah “detailed his martial arts expertise and offered to travel abroad to train al Qaeda combatants. Shah also told Soufan about Sabir, ‘an emergency room doctor’ who had been his ‘trusted friend[ ]’ for more than 25 years.”[108] Shah “[e]xplain[ed] that he knew Sabir’s ‘heart,’ [and] proposed that the two men join al Qaeda as ‘a pair, me and a doctor.’”[109] Later, “[a]t a subsequent meeting with [the informant], Shah reported that he had spoken in person with Sabir about this plan.”[110] In April 2004, “Shah and Agent Soufan next met in Orlando, Florida, […] at which time Shah agreed to prepare a syllabus for a martial arts training course as well as a training video. Shah also questioned Soufan at this meeting about al Qaeda suicide bombings and asked whether he could receive, as well as provide, terrorist training.”[111]
An appeals court summarized the set of facts underlying Dr. Sabir’s (subsequent) conviction:
For most of the time between May 2004 and May 2005, Sabir was out of the United States, working at a Saudi military hospital in Riyadh. On May 20, 2005, during a visit to New York, Sabir met with Saeed and Agent [Ali] Soufan at Shah’s Bronx apartment. Sabir told Soufan that he would soon be returning to Riyadh. He expressed interest in meeting with mujahideen operating in Saudi Arabia and agreed to provide medical assistance to any who were wounded. […] He suggested that he was ideally situated to provide such assistance because he would have a car in Riyadh and “carte blanche” to move freely about the city. […]
To ensure that Shah and Sabir were, in fact, knowingly proffering support for terrorism, Soufan stated that the purpose of “our war, ... our jihad ” is to “[e]xpel the infidels from the Arabian peninsula,” […] and he repeatedly identified “Sheikh Osama” (in context a clear reference to Osama bin Laden) as the leader of that effort […]. Shah quickly agreed to the need for war to “[e]xpel the Jews and the Christians from the Arabian Peninsula,” […], while Sabir observed that those fighting such a war were “striving in the way of Allah” and “most deserving” of his help […].
To permit mujahideen needing medical assistance to contact him in Riyadh, Sabir provided Soufan with his personal and work telephone numbers. […] When Shah and Soufan noted that writing down this contact information might create a security risk, Sabir encoded the numbers using a code provided by Soufan. […].
Sabir and Shah then participated in bayat, a ritual in which each swore an oath of allegiance to al Qaeda, promising to serve as a “soldier of Islam” and to protect “brothers on the path of Jihad ” and “the path of al Qaeda.” […] The men further swore obedience to “the guardians of the pledge,” whom Soufan expressly identified as “Sheikh Osama,” i.e., Osama bin Laden, and his second in command, “Doctor Ayman Zawahiri.”[112]
Shah and Dr. Sabir were arrested on May 28, 2005. They were indicted in the Southern District of New York on charges that, between October 2003 and May 2005, they conspired to provide material support or resources to al-Qaeda, a Foreign Terrorist Organization, and they provided or attempted to provide such support.
The fourth superseding indictment describes the three types of material support Shah and Dr. Sabir provided, attempted to provide, or conspired to provide as:
(i) one or more individuals (including themselves) to work under al Qaeda’s direction and control and to organize, manage, supervise, and otherwise direct the operation of al Qaeda, (ii) instruction and teaching designed to impart a special skill to further the illegal objectives of al Qaeda, and (iii) advice and assistance derived from scientific, technical and other specialized knowledge to further the illegal objectives of al Qaeda.[113]
The indictment also alleges, as part of the two counts, that Dr. Sabir agreed to provide “medical support to wounded jihadists” while Shah would provide “martial arts training and instruction for jihadists”—with both defendants “knowing that al Qaeda had engaged and engages in terrorist activity” and “terrorism.”[114]
Dr. Sabir moved to dismiss the indictment on the ground that it was unconstitutional to prosecute a doctor under § 2339B for providing medical services. Because the issue appeared to be a matter of “first impression” (that is, no other U.S. court had addressed it), Judge Loretta A. Preska issued, on January 30, 2007, a written decision.[115]
Judge Preska traced the history of § 2339B, which has the same meaning of “material support or resources” provided in § 2339A. Originally, in 1994, Congress enacted § 2339A, exempting from its reach “humanitarian assistance to persons not directly involved in such [material-support] violations.”[116] In 1996, however, Congress replaced that exemption with the phrase “except medicine and religious materials.”[117]
Quoting the congressional record, Judge Preska noted that “Congress intended the term ‘medicine’ to ‘be understood to be limited to the medicine itself, and does not include the vast array of medical supplies.’”[118] Judge Preska also noted that subsequent amendments by Congress, in December 2004:
- Added “expert advice or assistance” as a type of prohibited “material support or resource” (defining it as “advice or assistance derived from scientific, technical, or other specific knowledge”);
- Defined “personnel” to mean the provision of “[one] or more individuals (who may be or include himself) to work under [a foreign] terrorist organization’s direction or control or to organize, manage, supervise, or otherwise direct the operation of the organization”;
- Excluded from the scope of such “personnel,” for purposes of the statute, “[i]ndividuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives […]”; and
- Clarified the degree of knowledge required to violate the statute (namely, “a person must have knowledge that the organization is a designated terrorist organization […] that the organization has engaged or engages in terrorist activity […], or that the organization has engaged or engages in terrorism”).[119]
Dr. Sabir argued that the indictment was unconstitutional and should be dismissed because § 2339B deprived him of his right to practice medicine—specifically that § 2339B “does not sufficiently identify the prohibited conduct so that [Dr. Sabir] in his profession and practice as a medical doctor, could know, what if any of his conduct as it relates to the practice of medicine would violate the statute.”[120] That vagueness, according to Dr. Sabir, arose because § 2339B excludes “medicine” from its reach and the plain language definition of a doctor is someone who is qualified or licensed to practice medicine.[121]
Rejecting that argument, Judge Preska held that “Congress did not exclude from prosecution persons who provide ‘medical support’ to such organizations with” the necessary knowledge.[122] Moreover, Judge Preska held that:
[A]ny reasonable doctor would be on notice from the plain language of the statute that conspiring to provide, or providing or attempting to provide, ‘medical support to wounded jihadists’ under the direction and control of al Qaeda, knowing that al Qaeda engages in terrorism or terrorist activity, would constitute the provision of ‘expert advice or assistance’ — ‘advice or assistance derived from scientific, technical, or other specified knowledge’ […] — and ‘personnel’ — ‘[one] or more individuals (who may be or include himself) to work under [a foreign] terrorist organizations’ direction or control’.[123]
Finding that § 2339B does not deprive Dr. Sabir of the right to practice medicine, Judge Preska held that “[i]t is not beyond the power of Congress to prohibit the provision of medical services by a doctor working under the control or direction of a terrorist organization.”[124] Moreover, “[t]o the extent Sabir contends that Congress should not distinguish between a ‘doctor’ and ‘medicine,’ that is not an argument for this forum [that is, a court].”[125]
In dismissing Dr. Sabir’s challenge to the constitutionality of the indictment, Judge Preska emphasized that:
Sabir is not charged merely for being a doctor or for performing medical activities. Here, Sabir is alleged essentially to have volunteered as a medic for the al Qaeda military, offering to make himself available specifically to attend to the wounds of injured fighters. Much as a military force needs weapons, ammunition, trucks, food, and shelter, it needs medical personnel to tend to its wounded. Thus, applied to the conduct alleged against Sabir in the Indictment, § 2339B is not unconstitutionally vague.[126]
Judge Preska issued her decision around seven months after the seminal U.S. Supreme Court decision in Hamdan. There, as noted above, a 6–3 majority held that, at a minimum, Common Article 3 governed the armed conflict with al-Qaeda.[127] At no point in the decision, however, did Judge Preska address any IHL issue. She did not, for instance, assess whether al-Qaeda may recognize and authorize its own medical personnel such that those personnel would fall under the protection of IHL. Nor did she address the potential applicability of IHL prohibitions against punishing any person for carrying out medical activities compatible with medical ethics.[128] It seems that neither Dr. Sabir, nor the prosecution, nor the judge raised any issues concerning IHL.
Judge Preska also addressed two hypotheticals posed by Dr. Sabir’s counsel during oral argument. First, Dr. Sabir’s counsel “contended that a doctor who happens to treat a wounded person while working at a hospital when the person is brought in for treatment, and it later turns out that the person was a jihadist, would be subject to prosecution, under the Government’s view of § 2339B.”[129] Second, Dr. Sabir’s counsel “asserted that a non-governmental organization (‘NGO’) which provided medical services, such as ‘Doctors Without Borders/Médecins Sans Frontières,’ would be subject to prosecution, under the Government’s view of § 2339B.”[130]
Judge Preska rejected both contentions:
These hypotheticals are without merit because in both examples a reasonable doctor would understand that he could not be subject to prosecution under § 2339B. Neither the doctor in the first hypothetical who treats a terrorist by random chance, nor the doctor for the NGO in the second hypothetical who treats a terrorist in connection with an NGO’s work, is acting under the ‘direction or control’ of a designated foreign terrorist organization knowing that said organization engages in terrorism or terrorist activity. To the contrary, the doctors in these hypotheticals would constitute ‘[i]ndividuals ... act[ing] entirely independently of [a] foreign terrorist organization’ and would not be ‘considered to be working under [a] foreign terrorist organization’s direction and control.’ […] Accordingly, the Government represented that the doctors in these hypotheticals would not be prosecuted under § 2339B. ([…] (Statement of Karl Metzner, Assistant United States Attorney: ‘[T]he concern about Doctors Without Borders and all that is ill-founded because of the definition of personnel. The government is required to prove that Dr. Sabir worked or agreed to work under the terrorist organization’s direction or control before he can be convicted under this statute. That eliminates the nongovernmental organizations and others who provide assistance on their own.’)).[131]
In light of this and the preceding reasoning, Judge Preska held that Dr. Sabir failed to demonstrate that § 2339B reached any constitutionally protected conduct. Thus she concluded that § 2339B is not facially vague either.[132]
Following a jury trial held from April 24, 2007 to May 21, 2007, Dr. Sabir was found guilty of conspiring to provide and attempting to provide “material support or resources” to al-Qaeda, in the form of “medical support to wounded jihadists,” in violation of 18 U.S.C. § 2339B.[133] On October 15, 2007, Judge Preska denied Dr. Sabir’s motion for a judgment of acquittal and for a new trial.[134]
On November 28, 2007, the district court sentenced Dr. Sabir principally to a 300-month (12-year) term of incarceration.[135] Dr. Sabir appealed on six grounds, including that § 2339B is unconstitutionally vague and overbroad and that the trial evidence is insufficient to support his conviction.[136]
On February 4, 2011, the appeals court held in part that § 2339B “presents no overbreadth concerns and is not unconstitutionally vague as applied to Sabir’s conduct.” In reaching this holding, the appeals court relied partly on the June 21, 2010 U.S. Supreme Court decision in Holder v. Humanitarian Law Project. There, the Supreme Court held that § 2339B was not unconstitutionally vague as applied to certain activities the plaintiffs wished to pursue; that the statute did not, as applied to the plaintiffs, violate freedom of speech; and that the statute did not violate the plaintiffs’ freedom of association.[137] In reviewing the statutory framework, the appeals court also noted, in a footnote, that “Al Qaeda’s designation as a terrorist organization […] is undisputed. […] The United States’ response to al Qaeda has not, however, been limited to such designation. Two successive administrations have indicated that the nation is at ‘war’ with al Qaeda.”[138]
The appeals court rejected Dr. Sabir’s contention that § 2339B is overbroad in limiting “a doctor’s right to practice medicine.” (The overbreadth doctrine is rooted in the freedom-of-speech protections laid down in the First Amendment of the Bill of Rights to the Constitution. Generally, a law is unconstitutionally overbroad if it “punishes a substantial amount of protected free speech, judged in relation to [its] plainly legitimate sweep.”[139]) In doing so, the appeals court ruled that, in the U.S. constitutional system, the right to medical practice is subordinate to police powers and the power of the legislative branch to make laws necessary and proper for the nation’s defense.[140] The appeals court held that “[b]ecause Sabir […] cannot claim a ‘right’ to provide medical treatment for terrorists that is not ‘subordinate to ... the power of Congress to make laws necessary and proper’ to the nation’s defense […], he cannot mount a claim that § 2339B is unconstitutionally overbroad.”[141]
The court also rejected Dr. Sabir’s claim that § 2339B was unconstitutionally vague—that is, that the statutory terms at issue (“training,” “personnel,” and “expert advise and assistance”) were too vague to provide sufficient notice and that the application of those terms to his case was unconstitutional. In rejecting Dr. Sabir’s vagueness challenge to the term “personnel” as applied to his case, for instance, the court reasoned that Dr. Sabir’s “offer to serve as an on-call doctor for the organization, standing ready to treat wounded mujahideen in Saudi Arabia, falls squarely within the core” of § 2339B’s prohibition on “personnel.”[142] The court stated that:
In an effort to avoid this conclusion, Sabir argues that his offer of life-saving medical treatment was simply consistent with his ethical obligations as a physician and not reflective of any provision of support for a terrorist organization. The record does not support this characterization. Sabir was not prosecuted for performing routine duties as a hospital emergency room physician, treating admitted persons who coincidentally happened to be al Qaeda members. Sabir was prosecuted for offering to work for al Qaeda as its on-call doctor, available to treat wounded mujahideen who could not be brought to a hospital precisely because they would likely have been arrested for terrorist activities. […] In offering this support for al Qaeda, Sabir did not simply honor his Hippocratic oath. He swore a further oath of allegiance to al Qaeda, making clear that his treatment of wounded mujahideen would be provided not as an independent physician but as “one of the soldiers of Islam,” duty bound to obey al Qaeda’s leaders, including Osama bin Laden, and to protect his fellow “brothers on the path of Jihad ” and “on the path of al Qaeda.” […] No reasonable person with a common understanding of al Qaeda’s murderous objectives could doubt that such material support fell squarely within the prohibitions of § 2339B.[143]
Upholding the reasoning of the lower court, the appeals court also rejected Dr. Sabir’s claim that the “medicine” exemption in § 2339B was unconstitutionally vague as applied to his case.
The three members of the appeals court unanimously rejected Dr. Sabir’s overbreadth and vagueness claims. As summarized by Judge Dearie in a footnote, the court held unanimously “that § 2339B, by its terms, criminalizes the practice of medicine (or the doctor himself) that Sabir agreed to provide to al Qaeda.”[144]
The panel lacked unanimity, however, regarding whether the evidence was legally sufficient to sustain Dr. Sabir’s “attempt” conviction. Judge Dearie dissented with the majority’s conclusion that the evidence was sufficient. (Judge Dearie otherwise concurred with the majority.[145])
In the decision, none of the appeals court judges raised any considerations regarding IHL protections for medical care in armed conflict. Nor, apparently, did the prosecution or the defense in the pleadings.
Seen in one light, Dr. Sabir’s conviction represents a successful national-security strategy: a highly skilled expert was prevented from supporting a terrorist group to which he had pledged an oath of allegiance. But in another light, Dr. Sabir’s conviction represents a troubling disconnect: a physician was precluded from providing medical care to wounded fighters in an armed conflict, yet the laws of armed conflict never factored into the legal analysis.
The legal rationale underlying Dr. Sabir’s conviction is that it is impermissible to provide medical support (except medicine itself) to wounded jihadists knowing that they have engaged in terrorist activity. That rationale remains valid under U.S. law. Indeed, it was used in the following case.
U.S. v. Warsame
On June 21, 2005, the prosecution filed a superseding indictment against Mohamed Abdullah Warsame, a Canadian citizen, on federal counterterrorism charges. According to the indictment, between 2000 and 2001 Warsame traveled to Afghanistan and Pakistan and attended al-Qaeda training camps. The government alleged that al-Qaeda paid Warsame’s travel expenses so that he could return to Canada; that Warsame sent money to an al-Qaeda associate as repayment; and that Warsame maintained communications with individuals associated with al-Qaeda after his return to Canada.[146]
The indictment charged Warsame with conspiring to provide, and with providing, material support and resources to a designated Foreign Terrorist Organization (al-Qaeda) in violation of U.S. law. In a bill of particulars (a document specifying the charges in more detail) filed on March 16, 2007, the prosecution alleged that Warsame conspired to provide and provided material support and resources to al-Qaeda in the form of “currency,” “personnel” (himself), and “training.”[147]
Warsame challenged the constitutionality of the prosecution on three main grounds. First, that the underlying statute unlawfully restricted freedom of association and was unconstitutionally vague and overbroad. Second, that the statute violated the Due Process Clause of the Fifth Amendment of the Bill of Rights to the Constitution because it imposes criminal liability in the absence of personal guilt. And third, that the statutory procedure for designating an organization was unsound and precluded a defendant from challenging the validity of the designation in a subsequent criminal prosecution.
In discussing how it was not convinced that the term “training” was so vague that Warsame—a Canadian citizen—could not have understood his conduct to be prohibited under the applicable U.S. statute, the court stated:
Here, the prosecution alleges that Warsame provided English lessons in an Al Qaeda clinic in Kandahar, Afghanistan, in part to assist nurses in reading English-language medicine labels. According to the prosecution, nurses in the clinic attended to Al Qaeda members who were participating in nearby terrorist training camps. The alleged English-language training in this case has direct application to a FTO’s terrorist activities, as it would likely speed the healing and eventual return of terrorist militants to Al Qaeda training camps. Further, the training was provided in an Al Qaeda clinic in Kandahar, in close proximity to terrorist training camps. As such, the Court finds that this alleged conduct is closely tied to terrorist activity, such that Warsame would likely understand his conduct to be criminalized as ‘training’ under [the statute].[148]
The court concluded that “training” was not unconstitutionally vague as applied to this alleged conduct.[149] In the accompanying footnote, the court further found that “the provision of English language lessons to nurses to assist in the medical treatment of injured Al Qaeda militants does not fall within the statutory exception for ‘medicine.’”[150]
Ultimately, Warsame pleaded guilty to one count of conspiring to provide material support to a designated FTO.[151] As part of his plea agreement, Warsame admitted to certain facts, including that he “provided his services to al Qaeda […] by teaching English at a medical clinic for al Qaeda associates.”[152] On the basis of that and numerous other admissions, on July 9, 2009, a judge sentenced Warsame to 92 months’ imprisonment.[153]
Boim v. Holy Land Foundation
In addition to criminal charges prosecuted in U.S. courts, private plaintiffs have filed civil proceedings that raise issues related to the legal scope, under domestic law, of impartial medical care concerning terrorists in armed conflict. One such case is Boim v. Holy Land Foundation. It is of interest here not for the main holding but for the (non-binding) discussion on the scope of lawful medical care for terrorists under a civil statute.
As summarized by Judge Posner, the facts and main legal issue raised in the case were as follows:
In 1996 David Boim, a Jewish teenager who was both an Israeli citizen and an American citizen, living in Israel, was shot to death by two men at a bus stop near Jerusalem. His parents filed this suit four years later, alleging that his killers had been Hamas gunmen and naming as defendants Muhammad Salah plus three organizations: the Holy Land Foundation for Relief and Development, the American Muslim Society, and the Quranic Literacy Institute. […] The complaint accused the defendants of having provided financial support to Hamas before David Boim’s death and by doing so of having violated 18 U.S.C. § 2333(a), which provides that ‘any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.’[154]
In its 2008 judgment in the case, a majority of a federal appeals court confirmed a theory that, under U.S. law, raising money for Hamas could make the defendants civilly liable for certain acts of terrorism associated with Hamas.[155]
In passing, the majority stated that its theory of liability would not sweep in medical or “other innocent” assistance by NGOs such as “the Red Cross or Doctors Without Borders that provide such assistance without regard to the circumstances giving rise to the need for it.”[156] The majority’s reasoning and the reasoning of a judge concurring and dissenting with the majority are worth reciting.
The majority gave the hypothetical of “an Israeli retaliatory strike at Hamas caus[ing] so many casualties that the local medical services cannot treat all of them,” and Doctors Without Borders offering assistance while knowing “in advance that it would be providing medical assistance to terrorists.”[157] The majority reasoned that in this hypothetical an organization like Doctors Without Borders would not be in violation of the civil statute at issue. Part of the reason was that Doctors Without Borders “would be helping not a terrorist group but individual patients, and, consistent with the Hippocratic Oath, with no questions asked about the patients’ moral virtue.”[158]
Separately, the majority reasoned that “the rendering of medical assistance by the Red Cross or Doctors Without Borders to individual terrorists [would not] ‘appear to be intended […] to intimidate or coerce a civilian population’ or ‘affect the conduct of a government by […] assassination […]’” (which are elements of a terrorist act under the statute).[159] And without that appearance, “there is no international terrorist act within the meaning of” the statute.[160]
Judge Wood criticized the majority’s reasoning for establishing an unprincipled exemption: “[F]or no apparent reason other than our own sense that organizations like the Red Cross and Doctors Without Borders are good and do good, the majority simply declares them exempt from the broad liability standard that it has announced.”[161] Judge Wood stated that “[p]roviding medical care on the battlefield to individuals that one knows are Hamas terrorists […]undoubtedly would have the effect of aiding Hamas’s terrorism—patching up an injured terrorist enables him to strike again.”[162] While noting that she does “not doubt that such aid could be given for noble and compassionate reasons,” Judge Wood also stated that neither does she “doubt that from the standpoint of the Israelis whom Hamas targets, the knowing provision of medical care to individual terrorists could be and would be understood as aid to terrorism.”[163]
In any event, it is important to recall that, in the Boim case, the judges were interpreting a civil statute, not the federal criminal material-support statute under which Dr. Sabir and Warsame were prosecuted. To date, the reasoning in the latter cases concerning the scope of what constitutes criminal support to a designated FTO, in violation of 18 U.S.C. § 2339B, in the form of medical care remains valid. (Meanwhile, for its part, the “medicine” exemption to that material-support statute has been interpreted quite narrowly. In short, it “shields only those who provide substances qualifying as medicine to terrorist organizations.”[164])
Today, therefore, 18 U.S.C. § 2339B criminalizes the conduct not only of a person who—regardless of whether she is an American or not, and irrespective of whether her conduct takes place in the United States or not[165]—provides medical care (except medical substances) to terrorists by acting under the direction and control of a designated FTO.[166] In principle, the statute also proscribes the conduct of a physician who—in a situation of armed conflict and acting independently of the warring parties—impartially provides expert medical assistance to an hors de combat member of an FTO by, for example, dressing his wounds in a field clinic,[167] so long as the physician knows the wounded fighter is a member of a designated FTO.[168]
Footnotes
[1] See, e.g., S.C. Res. 1373 (2001), para. 2(f) (deciding that all states shall “[a]fford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings”).
[2] See Ben Saul, “The Legal Response of the League of Nations to Terrorism,” 4 JICJ 78 (2006).
[3] See, e.g., Robert P. Barnidge, Jr., “Terrorism: Arriving at an Understanding of the Term,” in Terrorism and International Law 192 (ed. Glennon, 2008) (concluding that “[a]t present […] international law has yet to recognize a definition of terrorism that exists in a legally obligatory way and that operates without reference to international treaties related to terrorism.”); Kai Ambos and Anina Timmermann, “Terrorism and customary international law,” in Research Handbook on International Law and Terrorism 28 fn 48 (ed. Saul, 2014).
[4] U.N. General Assembly, Sixth Committee, “Summary record of the 28 th meeting,” November 13, 2014, UN doc. A/C.6/69/SR.28, paras. 4–6, 8–9, and 15–17.
[5] International Convention for the Suppression of Acts of Nuclear Terrorism, 2445 U.N.T.S. 89; International Convention for the Suppression of the Financing of Terrorism, 2178 U.N.T.S. 197; International Convention for the Suppression of Terrorist Bombings, 2149 U.N.T.S. 256; Convention on the Safety of United Nations and Associated Personnel, 2051 U.N.T.S. 363; Convention on the Marking of Plastic Explosives for the Purpose of Detection, I.C.A.O. Doc. 9571; Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, I.C.A.O. Doc. 9518; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 974 U.N.T.S. 177; Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, 1678 U.N.T.S. 304; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1678 U.N.T.S. 201; Convention on the Physical Protection of Nuclear Material, 1456 U.N.T.S. 101; International Convention against the Taking of Hostages, 1316 U.N.T.S. 205; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, 1035 U.N.T.S. 167; Convention for the Suppression of Unlawful Seizure of Aircraft, 60 U.N.T.S. 105; Convention on Offences and Certain Other Acts Committed on Board Aircraft, 704 U.N.T.S. 219.
[6] Association of South East Asian Nations, ASEAN Convention on Counter Terrorism; Council of Europe, Convention on the Prevention of Terrorism, C.E.T.S. No. 196; South Asian Association for Regional Cooperation, Additional Protocol to the SAARC Regional Convention on Suppression of Terrorism Convention, SAARC/SUMMIT.12/SC.29/27, Annex III; Organization of the African Union, Protocol to the OAU Convention on the Prevention and Combating of Terrorism, July 8, 2004; European Union, Protocol Amending the European Convention on the Suppression of Terrorism, C.E.T.S. No. 190; Council Framework Decision 2002/475 on Combating Terrorism, 2002 O.J. (L 164) 3 (EC); Organization of American States, Inter-American Convention Against Terrorism, June 3, 2002, AG/RES. 1840 (XXXII-O/02); Organization of the Islamic Conference, Convention of the Organization of the Islamic Conference on Combating International Terrorism, July 1, 1999, Annex to Resolution No. 59/26-P; Organization of African Unity, OAU Convention on the Prevention and Combating of Terrorism, June 14, 1999; Commonwealth of Independent States, Treaty on Cooperation among States members of the Commonwealth of Independent States in Combating Terrorism, June 4, 1999; League of Arab States, The Arab Convention on the Suppression of Terrorism, Apr. 22, 1998; South Asian Association for Regional Cooperation, SAARC Regional Convention on Suppression of Terrorism; European Convention on the Suppression of Terrorism, C.E.T.S. No. 090; Organization of American States, Convention to Prevent and Punish Acts of Terrorism taking the Form of Crimes Against Persons and Related Extortion that are of International Significance, Feb. 2, 1971, O.A.S.T.S. No. 37.
[7] Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I, Feb. 16, 2011, pp. 49–50, para. 85 (concluding “that a customary rule of international law regarding the international crime of terrorism, at least in time of peace, has indeed emerged.”) [italics original; footnote omitted]; R v. Mohammed Gul [2012] EWCA Crim 280 [35] (holding that “[t]here is, we think, no doubt that international law has developed so that the crime of terrorism is recognised in situations where there is no armed conflict.”). But see Kai Ambos and Anina Timmermann, “Terrorism and customary international law,” in Research Handbook on International Law and Terrorism 38 (ed. Saul, 2014) (concluding that “one may qualify terrorism, at best, as a particularly serious transnational, treaty-based crime that is on the brink of becoming a true international crime. […] While the elements of terrorism have a solid basis in customary international law, their lack of precision is proof of the lack of consensus of the international community as to the details of the definition of an international crime of terrorism.”) [italics original].
[8] The Appeals Chamber of the Special Tribunal for Lebanon has concluded that:
[A] customary rule is incipient (in statu nascendi) which also covers terrorism in time of armed conflict (or rather, the contention can be made that the current customary rule on terrorism is being gradually amended). It is plausible to envisage that state practice […] may gradually solidify the view taken by so many States through Article 2(1)(b) of the Convention for the Suppression of Financing of Terrorism. If this occurs and State practice in addition extends such view to other manifestations of terrorism, one day the conclusion will be warranted that the customary rule currently in force has broadened so as to also embrace terrorism in time of armed conflict.
Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I, Feb. 16, 2011, p. 72, para. 109 [italics original; footnote omitted]. For the Tribunal’s definition of the international crime of terrorism in peacetime, id. at pp. 49–50, para. 85. The reasoning underlying this decision, however, has been criticized. See, e.g., Kai Ambos and Anina Timmermann, “Terrorism and customary international law,” in Research Handbook on International Law and Terrorism 36–38 (ed. Saul, 2014).
[9] See generally Kim Lane Scheppele, “The International Standardization of National Security Law and Policy,” 4 JNSLP 437 (2010) 446.
[10] Article 24 Charter of the United Nations, June 26, 1945, 59 Stat. 1031 (UN Charter).
[11] Article 25 UN Charter. In this section, we do not highlight all potentially relevant Security Council anti-terrorism resolutions but only those that may be most relevant to impartial medical care concerning terrorists.
[12] Article 103 UN Charter. In the initial resolutions of the 1267 and 1373 regimes, the Security Council did not expressly require that states act in conformity with IHL in discharging the obligations entailed in the decisions. In later resolutions in both regimes—e.g., S.C. Res. 2161 (2014) and S.C. Res. 2129 (2013)—the Security Council reaffirms in preambles that states must act in accordance with their other international law obligations, including their IHL obligations, in taking steps to combat threats to international peace and security caused by terrorist acts and to combat terrorism.
[13] See, e.g., Dustin A. Lewis (ed.), “International Counterterrorism Efforts: An Initial Mapping,” United Nations Counterterrorism Efforts, Harvard Law School Program on International Law and Armed Conflict, February 2015, available at http://pilac.law.harvard.edu/united-nations-efforts-home [http://perma.cc/DAC3-L7K9].
[14] See, most recently, U.N.G.A., “The United Nations Global Counter-Terrorism Strategy Review,” Resolution, June 24, 2014, UN doc. A/RES/68/276, para. 2.
[15] See, e.g., S.C. Res. 1373 (2001), paras. 1–2.
[16] Id. at paras. 1(a) and 2(a) and (c).
[17] The Counter-Terrorism Committee was established to monitor implementation and to receive state reports. S.C. Res. 1373 at para. 6. The Counter-Terrorism Executive Directorate was established pursuant to S.C. Res. 1535 (2004), para. 2.
[18] S.C. Res. 1373 (2001), para. 2(e).
[19] Reaffirmed in S.C. Res. 2178 (2014), para. 6.
[20] S.C. Res. 1373 (2001), para. 2(e); see also S.C. Res. 2178 (2014), para. 6.
[21] The Council has been characterized, in particular with respect to Resolution 1373, as thus taking the “first step” into “unexplored legal territory.” Erling Johannes Husabø and Ingvild Bruce, Fighting Terrorism Through Multilevel Criminal Legislation: Security Council Resolution 1373, the EU Framework Decision on Combatting Terrorism and their Implementation in Nordic, Dutch and German Criminal Law 39 (2009) (concluding that “Resolution 1373 satisfies even the strictest definition of international legislation. The Security Council thereby took a first step into what Szasz in 1995 called ‘unexplored legal territory’: to take ‘general legislative decisions as distinguished from those that relate to a particular dispute or situation’.” Id. [citation and reference omitted; hereinafter, Husabø and Bruce, Fighting Terrorism]. See generally Paul C. Szasz, “The Security Council Starts Legislating,” 96 AJIL 901 (2002).
[22] E.g., S.C. Res. 2133 (2014); S.C. Res. 2170 (2014); S.C. Res. 2178 (2014).
[23] S.C. Res. 1267 (1999).
[24] Security Council Resolutions 1988 (2011) and 1989 (2011) bifurcated the monitoring and sanctions regimes, with the former applying to the Taliban (and associated individuals, groups, undertakings, and entities) and the latter applying to al-Qaeda (and associated individuals, groups, undertakings, and entities). We focus on (associates of) al-Qaeda and not on (associates of) the Taliban here for two reasons. First, the Security Council considers (associates of) al-Qaeda as a threat to international peace and security, while (associates of) the Taliban are considered, as of Resolution 1988, a threat to the peace and security of Afghanistan. S.C. Res. 1989 (2011), preamble; S.C. Res. 1988 (2011), para. 1. Second, while the Taliban is designated a terrorist group by some states (such as Canada), al-Qaeda and its associates are designated as terrorists in far more jurisdictions.
[25] S.C. Res. 1333 (2000); S.C. Res. 1363 (2001); S.C. Res. 1388 (2002); S.C. Res. 1390 (2002); S.C. Res. 1452 (2002); S.C. Res. 1455 (2003); S.C. Res. 1456 (2003); S.C. Res. 1526 (2004); S.C. Res. 1617 (2005); S.C. Res. 1699 (2006); S.C. Res. 1730 (2006); S.C. Res. 1732 (2006); S.C. Res. 1735 (2006); S.C. Res. 1822 (2008); S.C. Res. 1904 (2009); S.C. Res. 1989 (2011); S.C. Res. 2083 (2012); S.C. Res. 2161 (2014); S.C. Res. 2170 (2014); S.C. Res. 2178 (2014); S.C. Res. 2199 (2015).
[26] S.C. Res. 2161 (2014), para. 1; S.C. Res. 2178 (2014), para. 8. The asset freeze on (associates of) al-Qaeda expressly applies to the payment of ransoms to designees, irrespective of how or by whom the ransom is paid. S.C. Res. 2161 (2014), para. 7.
[27] S.C. Res. 1267 (1999), paras. 4(a)(b), 6, and 8. The most recent resolution in this line of decisions is S.C. Res. 2161 (2014). Concerning the scope of the 1267/1989 arms embargo, asset freeze and travel ban, see Security Council Committee pursuant to resolutions 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities, Assets Freeze: Explanation of Terms, February 24, 2015; Security Council Committee pursuant to resolutions 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities, Arms Embargo: Explanation of Terms, February 24, 2015; Security Council Committee pursuant to resolutions 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities, Travel Ban: Explanation of Terms, February 24, 2015.
[28] S.C. Res. 1904 (2009), paras. 20–21; S.C. Res. 1989 (2011), paras. 21–23; S.C. Res. 2161 (2014), para. 41.
[29] S.C. Res. 1617 (2005), para. 2; reaffirmed in S.C. Res. 1822 (2008), para. 2; S.C. Res. 1904 (2009), para. 2; S.C. Res. 1989 (2011), para. 4; S.C. Res. 2083 (2012), para. 2; S.C. Res. 2161 (2014), para. 2. See also S.C. Res. 2178 (2014), paras. 7 and 20.
[30] S.C. Res. 1617 (2005), paras. 2 [italics added] and 3; reaffirmed in S.C. Res. 1822 (2008), paras. 2(d) and 3; S.C. Res. 1904 (2009), para. 2(d) and 3; S.C. Res. 1989 (2011), para. 4(c) and 5; S.C. Res. 2083 (2012), para. 2(c) and 3; S.C. Res. 2161 (2014), para. 2(c) and 4. See also S.C. Res. 2178 (2014), paras. 7 and 20; S.C. Res. 2214 (2015), para. 5.
[31] S.C. Res. 1617 (2005), para. 2 [italics added]; reaffirmed in S.C. Res. 1822 (2008), para. 2; S.C. Res. 1904 (2009), para. 2; S.C. Res. 1989 (2011), para. 4; S.C. Res. 2083 (2012), para. 2; S.C. Res. 2161 (2014), para. 2. See also S.C. Res. 2178 (2014), para. 20.
[32] Security Council Committee pursuant to resolutions 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities, “The List established and maintained by the Committee pursuant to resolutions 1267 (1999) and 1989 (2011) with respect to individuals, groups, undertakings and other entities associated with Al-Qaida,” available at http://www.un.org/sc/committees/1267/aq_sanctions_list.shtml [http://perma.cc/S8KN-7WLJ], last updated on August 6, 2015.
[33] Security Council Committee pursuant to resolutions 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities, “The List established and maintained by the Committee pursuant to resolutions 1267 (1999) and 1989 (2011) with respect to individuals, groups, undertakings and other entities associated with Al-Qaida,” available at http://www.un.org/sc/committees/1267/aq_sanctions_list.shtml [http://perma.cc/S8KN-7WLJ], last updated on August 6, 2015.
[34] The 1844 List established and maintained by the Committee pursuant to resolutions 751/1907 (2009) with respect to individuals, entities, groups, or undertakings, available at http://www.un.org/sc/committees/751/sanctions_list.shtml [http://perma.cc/5W8V-CLA5].
[35] S.C. Res. 2164 (2014), para. 18.
[36] As well as IHRL and IRL. S.C. Res. 2178 (2014), para. 5. See also S.C. Res. 1624 (2005), para. 4.
[37] S.C. Res. 2170 (2014), preamble; S.C. Res. 2178 (2014), preamble.
[38] S.C. Res. 2214 (2015), para. 6; S.C. Res. 2170 (2014), preamble; S.C. Res. 2178 (2014), preamble.
[39] S.C. Res. 2178 (2014), preamble.
[40] As well as in accordance with the U.N. Charter, IHRL, and IRL. S.C. Res. 1822 (2008), preamble; S.C. Res. 1904 (2009), preamble; S.C. Res. 1989 (2011), preamble; S.C. Res. 2083 (2012), preamble; S.C. Res. 2161 (2014), preamble; S.C. Res. 2170 (2014), preamble; S.C. Res. 2199 (2015), preamble. See also S.C. Res. 1456 (2003), Annex: Declaration on the issue of combating terrorism.
[41] As well as other international law obligations. S.C. Res. 2170 (2014), preamble; S.C. Res. 2178 (2014), preamble; S.C. Res. 2214 (2015), para. 6.
[42] As noted above, only with respect to two of these specific counterterrorism obligations—prohibiting incitement to terrorist acts and suppressing certain forms of support to foreign terrorist fighters—has the Council expressly required that member states act consistently with IHL (as well as with IHRL and IRL). S.C. Res. 2178 (2014), para. 5; S.C. Res. 1624 (2005), para. 4.
[43] S.C. Res. 1452 (2002), para. 1(a). Also, the Security Council required member states to exempt certain humanitarian organizations from sanctions imposed against, among others, al-Shabaab; that exemption was imposed not as part of the al-Qaeda sanctions regime but rather as part of the sanctions regime concerning Eritrea and Somalia. S.C. Res. 1916 (2010), para. 5; S.C. Res. 1972 (2011), para. 4.
[44] S.C. Res. 1617 (2005), paras. 2 [italics added] and 3; reaffirmed in S.C. Res. 1822 (2008), paras. 2(d) and 3; S.C. Res. 1904 (2009), para. 2(d) and 3; S.C. Res. 1989 (2011), para. 4(c) and 5; S.C. Res. 2083 (2012), para. 2(c) and 3; S.C. Res. 2161 (2014), para. 2(c) and 4. See also S.C. Res. 2178 (2014), paras. 7 and 20; S.C. Res. 2214 (2015), para. 5.
[45] Security Council Committee pursuant to resolutions 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities, “Narrative Summaries for Reasons for Listing: QDi.308 ZAFAR IQBAL,” available at http://www.un.org/sc/committees/1267/NSQDi308E.shtml [http://perma.cc/938L-84UK] [italics added].
[46] Security Council Committee pursuant to resolutions 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities, “Narrative Summaries for Reasons for Listing: QDi.246 REDENDO CAIN DELLOSA,” available at http://www.un.org/sc/committees/1267/NSQDi246E.shtml [http://perma.cc/YXP8-YCJ2] [italics added].
[47] Security Council Committee pursuant to resolutions 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities, “Narrative Summaries for Reasons for Listing: QDe.121 AL-AKHTAR TRUST INTERNATIONAL,” available at http://www.un.org/sc/committees/1267/NSQDe121E.shtml [http://perma.cc/ZB8U-MSGP] [italics added]. See also U.S. Treasury Dep’t, “U.S. Designates Al Akhtar Trust: Pakistani Based Charity is Suspected of Raising Money for Terrorists in Iraq,” Press Release, October 14, 2003, available at http://www.treasury.gov/press-center/press-releases/Pages/js899.aspx [http://perma.cc/F4NC-3N2F] (noting as background information to the listing of the al-Akhtar Trust that “Operation Enduring Freedom, the military phase of the war against terrorism, began on October 7, 2001. The U.S. government has information that, as of mid- November [sic] 2001, the AL AKHTAR TRUST was secretly treating wounded Al Qaida members at the medical centers it was operating in Afghanistan and Pakistan.”).
[48] Security Council Committee pursuant to resolutions 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities, “Narrative Summaries for Reasons for Listing: QDe.091 GLOBAL RELIEF FOUNDATION (GRF),” available at http://www.un.org/sc/committees/1267/NSQDe091E.shtml [http://perma.cc/QC76-RJHJ] [italics added].
[49] While not a focus of this report, some states also use forcible measures in responding to terrorist threats. For instance, where a state is deemed to have not met its responsibility to take sufficient steps to address threats of terrorism emanating from its territory, at least some states take the view that they may take forcible measures—even without specific Security Council authorization—to avert those perceived threats. Colombia, Israel, Turkey, and the United States are among those states that have invoked anti-terrorism justifications to engage in extraterritorial enforcement operations or uses of force abroad. See, e.g., Andrea Bianchi and Yasmin Naqvi, International Humanitarian Law and Terrorism 73–82 (2011).
[50] For an overview of the anti-terrorism measures of major humanitarian donors, see Kate Mackintosh and Patrick Duplat, Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action, U.N. Office for the Coordination of Humanitarian Affairs and the Norwegian Refugee Council, July 2013, pp. 19–44.
[51] See, e.g., Husabø and Bruce, Fighting Terrorism, supra note 21, at p. 447 (noting that Sweden, Finland, and Norway apply a form of universal jurisdiction). 18 U.S.C. § 2339B antedates these Security Council resolutions and applies not only to the extraterritorial conduct of U.S. citizens but also to the extraterritorial conduct of non-nationals. 18 U.S.C. § 2339B(d) and § 2339B(d)(1)(A), (B), (C), and (D). See Charles Doyle, “Terrorist Material Support: An Overview of 18 U.S.C. 2339A and 2339B,” Congressional Research Service, July 19, 2010, pp. 13–14.
[52] See, e.g., Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 23 (D.D.C. 1998) (observing that “terrorism has achieved the status of almost universal condemnation, as have slavery, genocide, and piracy, and the terrorist is the modern era’s hosti humani generis—an enemy of all mankind”).
[53] U.S. law prohibits granting asylum to people who have engaged in terrorist activity. 8 U.S.C § 1182. There is a limited exception concerning (only) certain forms of medically related material support to terrorism. U.S. Department of Homeland Security, Implementation of New Exemption Under INA Section 212(d)(3)(B)(i) for the Provision of Material Support in the Form of Medical Care, Policy Memorandum, PM-602-0052, November 20, 2011. But see Leonard S. Rubenstein, “Punishing Health Care Providers for Treating Terrorists,” Hastings Center Report 45, no. 4 (2015) 14.
[54] See, e.g., Criminal Code [Canada], R.S.C. 1985, c. C-46, § 83.01(1) (providing that the definition of “terrorist activity” expressly “does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law.”); Terrorism Suppression Act 2002 (NZ) s 10(3) (providing, as an exception to the prohibition on making property, or financial or related services, available to designated terrorist entity that “[a]n example of making property available with a reasonable excuse, for the purposes of subsection (1), is where the property (for example, items of food, clothing, or medicine) is made available in an act that does no more than satisfy essential human needs of (or of a dependant of) an individual designated under this Act.”); [Australia] Criminal Code Act 1995 (Cth) s 102.8(4)(c) (providing that the section on the crime of associating with terrorist organizations “does not apply if: [...] the association is only for the purpose of providing aid of a humanitarian nature”), s 119.2(3)(a) (providing that the section on the crime of entering, or remaining in, declared areas “does not apply if the person enters, or remains in, the area solely for one or more of the following purposes: providing aid of a humanitarian nature”), s 119.4(7) (providing that the section on the crime of preparations for incursions into foreign countries for purpose of engaging in hostile activities “does not apply if the person engages in conduct solely by way of, or for the purposes of, the provision of aid of a humanitarian nature.”), and s 119.5(4) (providing that the section on the crime of allowing the use of buildings, vessels and aircraft to commit offences “does not apply if the person engages in conduct solely by way of, or for the purposes of, the provision of aid of a humanitarian nature.”).
[55] Our use of the term “armed conflict” in this context is not meant to weigh in, with respect to the individual cases to be outlined, on whether a particular situation amounted to an armed conflict under IHL.
Separately, as noted above, in the ongoing armed conflict in Syria, the government has reportedly invoked anti-terrorism laws to curtail medical support to opposition factions and their purported supporters. U.N. Human Rights Council, Report of the independent international committee of inquiry on the Syrian Arab Republic, U.N. doc. A/HRC/25/65, Feb. 12, 2014, para. 111 and Annex VII, “Assaults on Medical Care,” para. 21. Reports indicate that the anti-terrorism laws passed in July 2012 “effectively made it a crime to provide medical care to anyone suspected of supporting the rebels.” Aryn Baker, “Syria’s Health Crisis Spirals As Doctors Flee,” Time Blog, February 4, 2014, available at https://time.com/3968/syrias-health-crisis-spirals-as-doctors-flee/ [https://perma.cc/D3JW-98ZD]. We have not, however, uncovered any domestic legal proceedings instituted in Syria against medical caregivers in relation to care for terrorists.
Finally, we reiterate that the institution of domestic proceedings appears to be under active consideration in Australia and the United Kingdom. See, e.g., Marga Zambrana and Emma Graham-Harrison, “American and Canadian among group of medics in Isis stronghold,” The Guardian, March 23, 2015, available at www.theguardian.com/world/2015/mar/23/american-canadian-maleeh-hamdoun-among-medics-group-isis-syria [http://perma.cc/LX3S-DPKN] (quoting the Home Office as saying, in respect of 11 medical school students—of American, British, and Canadian nationalities—who crossed into ISIS-controlled parts of Syria and who were believed to be working in hospitals there, that “even if they were in areas under Isis control, the medics would not automatically face prosecution under anti-terror laws if they tried to return to the UK, as long as they could prove they had not been fighting.”); Tim Williams and Sheradyn Holderhead, “Former Adelaide doctor Tareq Kamleh joins terror group ISIS, releases propaganda video,” Sunday Herald Sun, April 26, 2015, available at http://www.adelaidenow.com.au/news/south-australia/former-adelaide-doctor-tareq-kamleh-joins-terror-group-isis-releases-propaganda-video/story-fni6uo1m-1227321062787 [http://perma.cc/K8M6-4U9W] (reporting that an Australian physician who travelled to Raqqa to provide medical care and who appeared in an “Islamic State video urging other medical professionals to travel to Syria and join the holy war against the West” could face up to 25 years’ imprisonment).
[56] E.g., De La Cruz-Flores v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 115, para. 57(c) (Nov. 18, 2004) [hereinafter IACtHR, De La Cruz-Flores v. Peru].
[57] See generally Felicity Szesnat and Annie R. Bird, “Colombia,” in International Law and the Classification of Conflicts 214–228 (ed. Wilmshurst, 2012).
[58] Id.
[59] Colombian Criminal Code, art. 467. In other words, the crime of rebellion “encompasses all kinds of acts that are directed at destabilising the state’s institutions.” Ekaterina Ortiz Linares and Marisela Silva Chau, “Reflections on the Colombian case law on the protection of medical personnel against punishment,” 95 IRRC 891 (2013) 259 [hereinafter, “Linares and Chau, “Colombian case law”].
[60] Id. at p. 261 (citing to Supreme Court of Justice of Colombia, Criminal Cassation Court, Case No. 19915, June 10, 2005, p. 29).
[61] Id. at p. 261 (citing to Higher Tribunal of the Northern Judicial District of Santander, Criminal Decision Chamber, Ordinary Condemnatory Sentence, second instance, Case No. 54-498-31-04-002-2007-00111-01, July 9, 2009) [italics added].
[62] Linares and Chau, Colombian case law, supra note 59, at p. 260 [italics added] (citing Supreme Court of Justice of Colombia, Criminal Cassation Chamber, Case No. 7504, August 12, 1993, as cited in Supreme Court of Justice of Colombia, Criminal Cassation Chamber, Case No. 33558, July 7, 2010, p. 25.).
[63] Id.
[64] Article 10(1) AP II.
[65] ICRC, CIHLS, Practice Relating to Rule 26, Online edition, available at https://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule26_sectionb [https://perma.cc/PXS8-HDWH] (citing to Constitutional Court, Constitutional Case No. C-291/07, Judgment, April 25, 2007).
[66] Linares and Chau, Colombian case law, supra note 59, at p. 262.
[67] Id.
[68] Id. at pp. 262–63 (quoting Supreme Court of Justice of Colombia, Criminal Cassation Chamber, Case No. 27227, May 21, 2009, p. 3).
[69] In the eyes of the Court, “the medical activities performed by the accused, even though they had no relation with the armed confrontation, strengthened the guerrilla group since healed members of the group would subsequently return to fight against the government armed forces.” Id. at p. 263 (citing to Supreme Court of Justice of Colombia, Criminal Cassation Chamber, Case No. 27227, May 21, 2009, p. 12) [italics added].
[70] Id. at p. 263.
[71] Id.
[72] Id.
[73] Id.
[74] Id. (citing to Colombian Criminal Code, art. 441).
[75] Peru Truth and Reconciliation Commission, Final Report, Vol. VIII, “General Conclusions,” (English ed., May 2014), p. 331 available at https://www.ictj.org/sites/default/files/ICTJ_Book_Peru_CVR_2014.pdf [https://perma.cc/Y3JY-W2FA].
[76] IACtHR, De La Cruz-Flores v. Peru, supra note 56, at para. 73(34) (noting proceedings against at least four other physicians on terrorism-related offenses). See also id at para. 74(gg) (stating that the IACmHR indicated that “[i]n January 1999, the National Corporative Chamber for Cases of Terrorism acquitted two physicians charged with the crime of terrorism, because it concluded that the mere testimony of one or more ‘arrepentidos’ [repentant terrorism or treason convict] was insufficient grounds for a conviction. It acknowledged that the behavior of these physicians was in keeping with the ethics and legality of their professional activities; […].”).
[77] ICRC, States parties to Additional Protocol II, available at https://www.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected=475 [https://perma.cc/H7EM-WRAQ].
[78] IACtHR, De La Cruz-Flores v. Peru, supra note 56, at para. 73(8).
[79] Id. at para. 73(33).
[80] Id. at para. 73(20) [citation omitted].
[81] Based on available materials, while Peru had at this point become party to AP II, that Protocol does not seem to be incorporated into the proceedings. Two prosecutors, however, issued reports in Dr. De La Cruz-Flores’s favor. One report stated that her criminal liability had not been proved, and the other suggested to the criminal chamber that there were no grounds for a trial because Dr. De La Cruz-Flores’s “participation […] had consisted in providing medical care to militants.” Id. at para. 73(20) [citation omitted]. The Special Terrorism Chamber of the Lima Supreme Court did not admit either of those prosecutors’ reports, however, and decided instead to submit the case to the Supreme Criminal Prosecutor. Id. at para. 73(24).
[82] Id. [italics added; citation omitted]. On July 1, 2004, as noted by the IACtHR, “at the request of the alleged victim’s [Dr. De La Cruz-Flores’s] defense lawyer and for the first time during the proceeding, a confrontation procedure was conducted between the alleged victim and Jacqueline Aroni Apcho, she said that Mrs. De La Cruz Flores [sic] was not ‘Elíana’, that she did not know Mrs. De La Cruz Flores, that she did not recall the physical characteristics of ‘Elíana’ and that she did not know the latter’s real name. Moreover, two other testimonial statements made by individuals […] stated that ‘they did not know’ María Teresa De La Cruz Flores.” Id at para. 73(46) [citation omitted].
[83] The relevant law defines such prohibited acts of collaboration as including “[t]he ceding or use of any type of accommodation or other means which could be used to […] serve as a deposit for […] provisions, medicines, and other belongings related to terrorist groups or their victims.” Id. at para. 85.
[84] Id. at para. 73(27).
[85] Id. at para. 73(29).
[86] Id. at para. 73(32).
[87] Id. at para. 73(10)–(11).
[88] Id. at para. 73(49)–(50).
[89] American Convention on Human Rights, November 22, 1969, 1144 U.N.T.S. 123 (ACHR).
[90] IACtHR, De La Cruz-Flores v. Peru, supra note 56, at paras. 103, 109, 114, 136, and 188. The Court found that Peru had violated the right to humane treatment to the detriment not only of Dr. De La Cruz-Flores but also her next of kin: her children, her mother, and her siblings. Id. at para. 136.
[91] Id. at para. 76(d) [italics added]. That is, in its proceedings in front of the Court, Peru suggested that what was at stake was Dr. De La Cruz-Flores’s purported membership in the Shining Path (which was a stand-alone crime), as well as her failure to report possible terrorist acts, even though she had been convicted of different crimes. Id. at paras. 87–88.
[92] Id. at para. 102.
[93] Id. at para. 188(1) (citing to, among others, paras. 90–93 [concerning penalization of medical activities] in finding a violation of the right to freedom from ex post facto laws). In his separate opinion in the case, Judge Sergio García-Ramírez notes that
In brief, I consider that it is inadmissible – a consideration that coincides with the opinion of the Inter-American Court, as stated in the judgment in this case – to criminally penalize the conduct of a doctor who provides care designed to protect the health and life of other individuals, notwithstanding their characteristics, activities and beliefs, and the origin of their injuries or illnesses.
Judge Sergio García-Ramírez, Separate Opinion, De La Cruz-Flores v. Peru, supra note 65, at para. 13.
[94] Article 62(3) ACHR.
[95] IACtHR, De La Cruz-Flores v. Peru, supra note 56, at para. 95.
[96] Stephen W. Preston, “The Legal Framework for the United States’ Use of Military Force Since 9/11,” Speech, Annual Meeting of the American Society of International Law, Washington, D.C., April 10, 2015 (stating that “the groups and individuals against which the U.S. military was taking direct action (that is, capture or lethal operations) under the authority of the 2001 AUMF, including associated forces. Those groups and individuals are: al-Qa’ida, the Taliban and certain other terrorist or insurgent groups in Afghanistan; al-Qa’ida in the Arabian Peninsula (AQAP) in Yemen; and individuals who are part of al-Qa’ida in Somalia and Libya. In addition, over the past year, we have conducted military operations under the 2001 AUMF against the Nusrah Front and, specifically, those members of al-Qa’ida referred to as the Khorasan Group in Syria. We have also resumed such operations against the group we fought in Iraq when it was known as al-Qa’ida in Iraq, which is now known as ISIL.”); Harold Hongju Koh, “The Obama Administration and International Law,” Speech, Annual Meeting of the American Society of International Law, Washington, D.C., March 25, 2010 (stating that “as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law. As a matter of domestic law, Congress authorized the use of all necessary and appropriate force through the 2001 Authorization for Use of Military Force (AUMF).”).
[97] Hamdan v. Rumsfeld, 548 U.S. 557, 630–31, 126 S. Ct. 2749, 2795–96, 165 L. Ed. 2d 723 (2006).
[98] For the first time, in June 2015, the U.S. Department of Defense (DoD) published, as an institutional publication, a manual on the law of war that reflects DoD-wide views, rather than those of a specific service or person. U.S. Department of Defense, Law of War Manual v (2015). With respect to NIACs, the 2015 Manual does not incorporate all of the AP II medical-care protections. For instance, it does not include the prohibition on punishment laid down in article 10(1) AP II. U.S. Department of Defense, Law of War Manual § 17.14–15 (2015).
[99] Stephen W. Preston, “The Legal Framework for the United States’ Use of Military Force Since 9/11,” Speech, Annual Meeting of the American Society of International Law, Washington, D.C., April 10, 2015.
[100] With respect to ISIS, see U.S. v. Conley, “Plea Agreement and Statement of Facts relevant to Sentencing,” Criminal Action No. 14-cr-00163-RM, D. Colo., September 10, 2014; U.S. v. Conley, Criminal Complaint and Affidavit, Case No. 14-mj-01045-KLM, D. Colo., April 9, 2014.
[101] § 2339B(d).
[102] § 2339B(d)(1)(A), (B), (C), (D).
[103] United States v. Farhane, 634 F.3d 127, 132 (2d Cir. 2011).
[104] Id. at p. 132.
[105] Id. [citations omitted].
[106] Id. [citations omitted].
[107] Id. [citations omitted].
[108] Id. at pp. 132–33 [citation omitted].
[109] Id. at p. 133 [citation omitted].
[110] Id.
[111] Id.
[112] Id. At the relevant time, al-Qaeda considered the government of Saudi Arabia an enemy and vice versa. It is not clear whether Dr. Sabir meant to provide care impartially, in IHL terms, as that issue did not arise as such on the available record. But according to available accounts, Dr. Sabir, as an emergency-room physician, had treated all patients on an impartial basis.
[113] Id. at p. 134 [citation omitted].
[114] Id. [citation omitted; italics added].
[115] United States v. Shah, 474 F. Supp. 2d 492, 493 (S.D.N.Y. 2007).
[116] Id. at p. 495 [citations omitted].
[117] Id. [citations omitted].
[118] United States v. Shah, 474 F. Supp. 2d 492, 495 (S.D.N.Y. 2007) (citing to H.R. Rep. 104–518, at 114 (1996), as reprinted in 1996 U.S.C.C.A.N. 944, 947).
[119] United States v. Shah, 474 F. Supp. 2d 492, 495 (S.D.N.Y. 2007) [citations omitted; italics added in each bullet point].
[120] Id. at p. 496 [citation omitted].
[121] Id. [citation omitted].
[122] Id. at p. 497.
[123] Id. [citations omitted]. This excerpt leaves some ambiguity as to whether Judge Preska considered working under the direction and control of al-Qaeda to constitute a necessary element of the offense of providing proscribed “expert advice or assistance” in addition to the offense of providing proscribed “personnel.” On its terms, the statute includes that direction-and-control prong as a necessary element only for the offense of providing proscribed “personnel.” Compare 18 U.S.C. § 2339B(g)(4) (“the term ‘material support or resources’ has the same meaning given that term in section [18 U.S.C. §] 2339A (including the definitions of […] ‘expert advice or assistance’ in that section)”) and 18 U.S.C. § 2339A(b)(3) (“the term ‘expert advice or assistance’ means advice or assistance derived from scientific, technical or other specialized knowledge.”) with 18 U.S.C. § 2339B(h) (“No person may be prosecuted under this section in connection with the term ‘personnel’ unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization’s direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control.”) [italics added].
[124] Id. at p. 498 [citations omitted].
[125] Id. [citation omitted].
[126] Id. [italics added].
[127] Hamdan v. Rumsfeld, 548 U.S. 557, 630–31, 126 S. Ct. 2749, 2795–96, 165 L. Ed. 2d 723 (2006).
[128] See infra Section 4: “Corollary Protections for Medical Caregivers, Transports, Units, and Supplies — Prohibition on punishment.”
[129] United States v. Shah, 474 F. Supp. 2d 492, 499 (S.D.N.Y. 2007) [citations omitted].
[130] Id. [citations omitted].
[131] Id. [citations omitted; italics added]. Two aspects of the referenced statement of the Assistant United States Attorney (A.U.S.A.) merit further attention. First, Dr. Sabir’s charges pertained to two forms of prohibited material support—personnel and expert advice and assistance. But the referenced statement of the A.U.S.A. pertains only to the provision of personnel proscribed in 18 U.S.C. § 2339B; the statement does not explicitly (also) pertain to the provision of expert advice and assistance proscribed in that statute. Under the statute, to prove a violation of the latter (the provision of unlawful expert advice and assistance), the government is not required to establish that the defendant acted under the direction and control of the designated FTO. Compare 18 U.S.C. § 2339B(g)(4) (“the term ‘material support or resources’ has the same meaning given that term in section [18 U.S.C. §] 2339A (including the definitions of […] ‘expert advice or assistance’ in that section)”) and 18 U.S.C. § 2339A(b)(3) (“the term ‘expert advice or assistance’ means advice or assistance derived from scientific, technical or other specialized knowledge.”) with 18 U.S.C. § 2339B(h) (“No person may be prosecuted under this section in connection with the term ‘personnel’ unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization’s direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control.”) [italics added].
Second, this referenced statement concerning the need for the government to establish, to prove a violation of the personnel prong of 18 U.S.C. § 2339B, that the defendant worked under the direction and control of the designated FTO was provided by an A.U.S.A. during a proceeding in this specific case. So far as we are aware, the Department of Justice has not promulgated a formal prosecutorial policy or other form of authoritative guidance establishing the referenced interpretation of the personnel prong of 18 U.S.C. § 2339B in a binding manner.
[132] Id. at pp. 499–500 [citations omitted].
[133] United States v. Sabir, 628 F. Supp. 2d 414, 416 (S.D.N.Y. 2007).
[134] Id. at p. 425.
[135] United States v. Farhane, 634 F.3d 127, 134 (2d Cir. 2011).
[136] Id. at p. 132 (2d Cir. 2011). His other grounds of appeal were that the prosecution’s peremptory jury challenges exhibited racial bias; that evidentiary rulings deprived him of the right of confrontation and/or a fair trial; that the district court abused its discretion in addressing alleged juror misconduct; and that the prosecution’s rebuttal summation deprived him of a fair trial. Id.
[137] Holder v. Humanitarian Law Project, 561 U.S. 1, 40, 130 S. Ct. 2705, 2731, 177 L. Ed. 2d 355 (2010).
[138] United States v. Farhane, 634 F.3d 127, 173 fn 7 (2d Cir. 2011) [citations omitted].
[139] Virginia v. Hicks, 539 U.S. 113, 118–19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) [internal quotation marks omitted].
[140] United States v. Farhane, 634 F.3d 127, 137 (2d Cir. 2011) [citations omitted].
[141] Id. [citations omitted].
[142] Id. at pp. 140–41 [citations omitted].
[143] Id. at p. 141 [citations omitted; italics—other than mujahideen—added].
[144] Id. at p. 173 fn 8 [italics added].
[145] Id. at p. 175. Judge Raggi filed an opinion concurring in part regarding the scope of hearsay evidence as applied to certain statements of Dr. Sabir. Id. at 171.
[146] United States v. Warsame, 537 F.Supp.2d 1005, 1009 (2008).
[147] Id. at p. 1010.
[148] Id. at p. 1019 fn 12 [citation omitted; italics added].
[149] Id at p. 1019 [citation omitted]. With respect to the more general allegation that Warsame taught English at an al-Qaeda clinic, the court found that the term “training” was, as applied to that alleged conduct, unconstitutionally vague, since “mere allegations that Warsame taught English at an Al Qaeda clinic, without more specific allegations tying that conduct to terrorist activity,” were not sufficient under the statute. Id. [italics added].
[150] Id. at p. 1019 fn 12 [citing to Shah, 474 F.Supp.2d at 497; italics added].
[151] United States v. Warsame, 651 F. Supp. 2d 978, 979 (D. Minn. 2009).
[152] Id. at p. 980.
[153] Id. at p. 979.
[154] Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685, 687–88 (7th Cir. 2008).
[155] Id. at pp. 690–91.
[156] Id. at p. 699.
[157] Id. [italics added].
[158] Id. [italics added] (rather, the majority analogized, “It would be like a doctor who treats a person with a gunshot wound whom he knows to be a criminal. If doctors refused to treat criminals, there would be less crime. But the doctor is not himself a criminal unless, besides treating the criminal, he conceals him from the police (like Dr. Samuel Mudd, sentenced to prison for trying to help John Wilkes Booth, Lincoln’s assassin, elude capture) or violates a law requiring doctors to report wounded criminals. The same thing would be true if a hospital unaffiliated with Hamas but located in Gaza City solicited donations.”).
[159] Id.
[160] Id.
[161] Judge Wood, dissenting in part and concurring in part, Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685, 710–11 (7th Cir. 2008).
[162] Id. at 711. [internal reference omitted; italics added].
[163] Id. [italics added].
[164] United States v. Farhane, 634 F.3d 127, 143 (2d Cir. 2011).
[165] 18 U.S.C. § 2339B(d).
[166] 18 U.S.C. § 2339B(h).
[167] Thus going beyond providing him with mere medical substances. On the scope of proscribed conduct in the form of expert advice or assistance, see 18 U.S.C. § 2339B(g)(4) (“the term ‘material support or resources’ has the same meaning given that term in section [18 U.S.C. §] 2339A (including the definitions of […] ‘expert advice or assistance’ in that section)”); 18 U.S.C. § 2339A(b)(3) (“the term ‘expert advice or assistance’ means advice or assistance derived from scientific, technical or other specialized knowledge.”).
[168] According to the U.S. Supreme Court, “Congress plainly spoke to the necessary mental state for a violation of § 2339B, and it chose knowledge about the organization’s connection to terrorism, not specific intent to further the organization's terrorist activities.” Holder v. Humanitarian Law Project, 561 U.S. 1, 16–17, 130 S. Ct. 2705, 2717, 177 L. Ed. 2d 355 (2010).
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