State Responses to Foreign Terrorist Fighters and Support for Humanitarian Action in Counterterrorism Contexts

Most assessments of compliance with Security Council obligations are qualitative in nature. The same goes for the extent to which states support principled humanitarian action. That makes sense on both accounts, as neither of these areas of concern may appear, at first glance, to be particularly susceptible to empirical analysis.

Yet we were compelled to combine quantitative and qualitative assessments of subtopics within these areas for two reasons. Most importantly, we wanted to see if, by combining these forms of assessment, we could learn and explain something new and meaningful about these two areas of state practice—on their own and in combination. We also wanted to reach a broader audience. Visualizations of data—in charts and maps, for instance—may help catalyze interest in these areas among those for whom a more traditional qualitative analysis may be less interesting or less accessible. As both researchers and analysts, we hoped to draw connections between these quantitative and qualitative assessments that may prove to be informative and innovative.

Empirical Research Methodologies and Approaches

In this sub-section, we summarize how we undertook our empirical research; what types of data and other sources we used; and important caveats to our findings. Through this line of research, we have attempted to bring new and impactful ways of thinking, researching, evaluating, and disseminating information and analysis involving the ways states give effect to their counterterrorism obligations and how states support humanitarian action in counterterrorism contexts. As this is a first attempt on our part to think through some of the methodologies and analytical implications, we invite critical feedback. We emphasize that, due to the caveats listed later in the section, all of the results of this section should be considered provisional.

Selection of States

Due to time and resource constraints, we could not review every U.N. member state’s compliance with Resolution 2178. Nor could we examine the extent to which every such state supports principled humanitarian action in counterterrorism contexts. Instead, we narrowed the list to a manageable number by applying a few filters to obtain a cross-section of especially relevant states:

Based on these considerations, we ultimately selected twenty-five states for initial review: Australia, Belgium, Bosnia and Herzegovina, Canada, China, Denmark, France, Germany, Jordan, Lebanon, Libya, Morocco, the Netherlands, New Zealand, Norway, Pakistan, Russia, Saudi Arabia, Sweden, Tunisia, Turkey, the United Arab Emirates, the United Kingdom, the United States, and Uzbekistan.

Research Caveats and Limitations of the Provisional Quantitative Findings

To effectively identify and use quantitative metrics in both of these areas of concern, we had to try to overcome numerous methodical and analytical hurdles. Our provisional analysis should be read with the following six sets of limitations and other considerations in mind.

  1. Translating Security Council-imposed FTF obligations into quantitative figures. We had to decide how to translate the relevant binding Security Council obligations into quantifiable figures.[1] This proved quite challenging. As an initial matter, interpreting Security Council resolutions—including the relative “bindingness” of the obligations imposed in decisions—can be a highly technical exercise.[2] More specifically, for its part Resolution 2178 is one of many in two long lines of related Security Council decisions concerning terrorism. We therefore had to choose which of the obligations imposed in Resolution 2178 were the most salient ones for our analysis; how to combine similar types of obligations into overarching categories; and which obligations in Resolution 2178 to leave out. Lastly, we had a bias toward identifying ways that states comply with Resolution 2178 that are relatively more susceptible to empirical metrics. There are at least two downsides to these approaches: (i) our analysis does not assess compliance with Resolution 2178 in a comprehensive fashion; and (ii) our analysis necessarily turns in part on an allocation of points based on our, as researchers, relative assessment of the importance of the underlying obligation and how those obligations may be usefully grouped together.
  2. Translating state support of principled humanitarian action in counterterrorism contexts into quantitative figures. We went through the same process to decide how to translate ways that states support principled humanitarian action in counterterrorism contexts—especially concerning Iraq and Syria—into quantifiable figures. This, too, proved very difficult. As a threshold issue, there are no comprehensive, agreed-upon metrics to discern the extent to which states support principled humanitarian action in counterterrorism contexts in general—let alone concerning how states do so while countering FTF threats in particular. Thus we needed to pick and choose among existing metrics (where available) and come up with our own (where they did not exist). And, as in the area of compliance with Resolution 2178, we also had a bias toward identifying ways that states support principled humanitarian action in counterterrorism contexts that are relatively more susceptible to quantifiable metrics. As noted with the assessment of compliance with Resolution 2178, two downsides of this approach are (i) that our analysis does not assess the relevant support of principled humanitarian action in a comprehensive fashion, and (ii) that our analysis necessarily turns in part on an allocation of points based on our, as researchers, relative assessment of the underlying issues pertaining to principled humanitarian action.
  3. Designing a set of quantitative measurement scales. We had to decide which type of measurement would be most useful to discern something meaningful about each area of concern. To give our quantitative analysis a basic structure, we settled on a 50-point scale for each of the two segments. That is, each area of concern—(i) compliance with key FTF-related aspects of Resolution 2178 and (ii) key areas of support of principled humanitarian action in counterterrorism contexts—was allocated its own 50-point scale.
  4. Dividing the relevant areas of state practice into elements that are susceptible to quantitative analysis. We divided up the two main areas of concern in such a way that we could effectively conduct research into the underlying issues. Tracking the parity in the partition of the 50-point scales per main area of concern, we decided to divide each 50-point area-of-concern scale into five sets of sub-categories (or buckets). Each of those five categories would be responsible for ten points. To devise these categories, we combined relevant obligations and areas of state practice. In doing so, we prioritized some obligations and practices over others. The key downside, among many, to these approaches is that our priorities and groupings reflect our assessments, as researchers, of the obligations and practices that should be prioritized and necessarily leave others out.
  5. Utilizing resources that lack comprehensiveness and/or accuracy. We attempted to provisionally assess each category of state practice based on non-comprehensive resources: primary and secondary sources, including laws and regulations, news reports, and reports and figures from NGOs and government agencies. This is not a field report; it primarily reflects desk research. In assessing compliance with key FTF-related Security Council obligations, we leaned heavily on U.S. government reports. Most of the research was conducted in English, though we benefitted from research assistance conducted in Arabic, French, and Spanish from research assistants. We conducted research from May through July 2015.

Another possible (and related) limitation to the findings is the dynamic nature of counterterrorism law, especially as states work rapidly to implement Resolution 2178. Any changes made to counterterrorism laws or protections of humanitarian action made after July 2015 would not be reflected in our findings. Further, a state may pass counterterrorism laws individually, or incorporate them into their criminal or penal codes, or in some instances, issue royal decrees or presidential statements. The variety of ways in which the provisions of Resolution 2178 can be implemented, combined with the speed at which countries have acted to implement these laws and policies, means that the information we have for a particular state may be incomplete or have changed by the date of this report. We note that in looking for relevant laws and regulations, we not only included legislative measures put into place as a direct response to Resolution 2178 but also preexisting measures, with the understanding that the FTF environment will likely increase scrutiny and enforcement of even those laws that preceded the Security Council’s FTF directives.

Finally, and perhaps most importantly, no online research platform contains accurate, up-to-date, and comprehensive national-level counterterrorism-related legislation for all U.N. member states. The U.N. Office of Drugs and Crime’s Terrorism Prevention Branch has developed an important initial, and growing, set of such legislative resources.[3] But that platform lacks important functionality (for instance, full documents are sometimes not available) and is not comprehensive. For all of the foregoing reasons, we acknowledge that there may be (significant) holes in the comprehensives and accuracy of our research—which is partly why we are casting our findings as provisional. We nonetheless hope that our analysis and the accompanying methodological approach spur more engagement with these topics and themes.

  1. Overcoming the lack of extensive data on foreign terrorist fighters. A specific and significant limitation involved the (lack of) availability of concrete data on foreign terrorist fighters. We used figures from the International Centre for the Study of Radicalisation and Political Violence, whose estimates were often given as ranges that could number as large as 1,500 fighters.[4] We relied on these numbers throughout our research: most notably, to help select the states we researched. As with counterterrorism law, the number of foreign fighters traveling to Iraq, Syria, and neighboring countries remains fluid, and estimates are just that: estimates. We do not know exactly how many people have become FTFs, and the number appears certain to continue increasing as time passes. As Nicholas Rasmussen, director of the U.S. National Counterterrorism Center, stated during a U.S. congressional hearing, “We know what we know, but that comes from a wide variety of sources and we have always assessed that there is likely more information out there that we have not yet been able to collect.”[5] He added that “it’s possible that there are greater numbers of foreign fighters, and potentially even greater numbers of individuals from Western countries and the United States who’ve traveled to the conflict zones.”[6]

To our knowledge, this is the first effort to quantify—from legal, policy, and practical perspectives—and to evaluate quantitative evidence of compliance with Security Council counterterrorism obligations. It also appears to be the first attempt to quantify state support of principled humanitarian action in counterterrorism contexts. We see this as an initial step. We hope that our approach spurs critical discussion. And we accordingly invite others to help strengthen the underlying research approaches, evidentiary bases, and evaluative mechanisms.

Assessment and Provisional Allocation of Points

Provisional Indicators of State Compliance with Five Key Foreign Terrorist Fighter Elements of Resolution 2178

States could receive a maximum of 50 points for their compliance with the legal obligations of Resolution 2178. We divided points into five categories of obligations, each totaling ten points. As noted above, we assessed compliance with five key FTF elements of Resolution 2178 by examining primary and secondary sources, including laws and regulations, presidential statements, royal decrees, news reports, and reports by non-governmental organizations (NGOs) and government agencies, such as the U.S. Department of State’s Country Reports on Terrorism. Using these sources, we conducted research through July 2015.

With the identified caveats in mind (see above), generally speaking our research found that states have acted quickly and, in some instances, forcefully to implement the relevant provisions of Resolution 2178. This includes the passage of new laws criminalizing the actions, travel, training, and recruitment of foreign terrorist fighters. States have also increased border security and enhanced security measures on travel documents in response to the foreign fighter threat and prosecuted individuals who are suspected to be foreign fighters.

Provisional Indicators of State FTF Compliance Subcategory 1:
Prevent and Suppress Foreign Terrorist Fighter Travel

Assessment criteria      

Does the state:

i. Prevent and suppress the recruiting, organizing, transporting, equipping, and financing of FTFs;

ii. Prevent entry or transit through their territory of FTFs; and

iii. Prevent movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents?[7]

Provisional Points          

We allocated up to 10 points in total for this subcategory:

  • 8 potential points relate to the “prevent and suppress” provisions (assessment criteria i). We tabulated those points by assessing the number of reported foreign fighters per capita and dividing the countries into five tiers (with five states per tier):
    • 8 points = first tier (states with the lowest proportion of reported foreign fighters),
    • 6 points = second tier;
    • 4 points = third tier;
    • 2 points = fourth tier; and
    • 0 points = fifth tier (states with the highest proportion of reported foreign fighters).  
  • 1 point = Available evidence suggests the state sought to prevent FTFs from entering or traveling through their territory (assessment criteria ii);
  • 1 point = Available evidence suggests the state has adopted (relatively) effective border controls and controls on the issuance of identity papers and travel documents (assessment criteria iii).

Analysis

We provisionally found that 17 of the 25 states we examined, or 68 percent, had enacted or are considering measures to “prevent and suppress the recruiting, organizing, transporting, equipping, and financing” of foreign terrorist fighters. Several states, including Germany and Saudi Arabia, enacted laws in September 2014, around the same time that the Security Council adopted the resolution. Moreover, our research found that many states under review implemented robust measures to stem the flow of foreign fighters through their countries. For instance, Australia allows for the administrative preventative detention of persons over the age of 16 to prevent them from leaving the country to commit certain acts, including engaging in hostile activity in a foreign country.[8] France passed a similar law in November 2014, allowing the French government to prevent persons from leaving the country if officials suspect they are traveling to engage in terrorist activity.[9] In 2015, the United Kingdom passed a law requiring teachers, health care workers, and local government employees to inform law enforcement agencies if they suspect a young person is becoming “radicalized.”[10]

Provisional Indicators of State FTF Compliance Subcategory 2:
Penalize Foreign Terrorist Fighter Conduct

Assessment criterion   

Does the state ensure that domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and penalize their nationals and other individuals who travel or attempt to travel to a State other than their States of residence or nationality, for the purpose of perpetration, planning, or preparation of, or participation in, terrorist acts, or providing or receiving terrorist training?[11]

Provisional Points          

For this subcategory, states could fall into one of three tiers with a maximum of 10 points:

  • 10 points = Available evidence suggests the state complied with these requirements.
  • 6 points = Available evidence suggests the state demonstrated partial compliance with the requirements, and/or efforts to implement the requirements that had not yet been fully realized.
  • 2 points = Available evidence suggests the state demonstrated little to no compliance with these requirements of the resolution.

Analysis

According to our provisional findings, punishments for foreign terrorist fighters, as well as individuals who commit acts preparatory to committing terrorist acts by traveling abroad and fighting, are generally severe. The majority of states under review impose sentences ranging from five to ten years’ imprisonment for terrorist acts, including those acts associated with foreign terrorist fighters. Moreover, several states have greater sentences in place for foreign terrorist fighters. For instance, Denmark prescribes a maximum of 16 years’ imprisonment for recruiting others commit or to “advance” certain actions, including joining a group or association, that are proscribed under the terrorism section of the Danish Penal Code.[12] Saudi Arabia prescribes a 20-year prison sentence for individuals who join extremist organizations, participate in military operations with such organizations, or support those groups, either materially or by recruiting others to join them.[13] Australia prescribes a 25-year sentence for various terrorist acts,[14] and Norway prescribes a 30-year prison sentence for various terrorist acts.[15] Also under Australian legislation, entering or remaining in a “declared area” of a foreign country with the intention of engaging in hostile activities is punishable by ten years’ imprisonment.[16] In Tunisia, the death penalty may be imposed on individuals who commit acts of terrorism.[17] Beyond imprisonment, other legal consequences facing individuals suspected to be foreign fighters include the revocation of travel documents, and even the loss of one’s citizenship (if such a loss would not render the individual stateless).

While some of these laws were enacted prior to the adoption of Resolution 2178, others were implemented in response to the requirements of the resolution. The emphasis and weight that states have given to criminalizing the acts of foreign fighters evidences efforts to aggressively deter and punish those foreign terrorist fighters who participate in hostilities or take other actions preparatory to traveling to conflict zones.

Provisional Indicators of State FTF Compliance Subcategory 3:
Penalize Funding to Foreign Terrorist Fighters

Assessment criterion   

Does the state ensure that domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and penalize the wilful provision or collection of funds by their nationals or in their territories?[18]

Provisional Points          

States could fall into one of three tiers with a maximum of 10 points for this subcategory:

  • 10 points = Available evidence suggests the state complied with these requirements;
  • 6 points = Available evidence suggests the state demonstrated partial compliance with the requirements, and/or efforts to implement the requirements that had not yet been fully realized; or
  • 2 points = Available evidence suggests the state demonstrated little to no compliance with these requirements of the resolution.

Analysis

Our provisional research revealed that the laws of individual states, as well as assessments by bodies like the Financial Action Task Force (FATF), appear to indicate that most of the states under review have taken measures to protect against terrorist financing. According to the FATF and other similar bodies, however, several states—including Bosnia, Jordan, and Sweden—need to take additional steps toward preventing terrorist financing.[19] Additionally, many states appear to have cooperated with each other to assist with criminal investigations relating to the financing or support of terrorist acts. This relatively high level of compliance among reviewed states may be a result of increased focus and ongoing assessments on preventing terrorist financing by groups like the FATF.

Provisional Indicators of State FTF Compliance Subcategory 4:
Penalize Facilitation and Recruitment of Foreign Terrorist Fighters

Assessment criterion   

Does the state ensure that domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and penalize the wilful organization, or other facilitation, including acts of recruitment, by their nationals or in their territories, of the travel of individuals who travel to a State other than their states of residence or nationality for the purpose of the perpetration, planning, preparation of, or participation in, terrorist acts or the provide or receiving of terrorist training?[20]

Provisional Points          

For this subcategory, states could fall into one of three tiers with a maximum of 10 points:

  • 10 points = Available evidence suggests the state complied with these requirements;
  • 6 points = Available evidence suggests the state demonstrated partial compliance with the requirements, and/or efforts to implement the requirements that had not yet been fully realized; or
  • 2 points = Available evidence suggests the state demonstrated little to no compliance with these requirements of the resolution.

Analysis

Our provisional research suggests that some states appear to have not criminalized certain acts as specifically required by the resolution. This occurred most frequently with respect to the requirement to ensure that domestic laws provide the ability to “prosecute and penalize the willful organization, or other facilitation, including acts of recruitment [emphasis added]” by their citizens or within their states. Many states have criminalized recruitment, but “other facilitation” and all that it might include is less clear, and that language does not appear in many states’ criminal or penal codes. The exclusion of this language may reflect ambiguity in the resolution itself, or the absence of a definition for “other facilitation.” This may ultimately result in two extremes: states avoiding such broad language, or perhaps states enacting laws that broadly criminalize behavior defined as “other facilitation.” In the laws we researched, relatively specific language prohibiting “support,” “material support,” “assistance,” or “participation” appears more frequently than proscriptions on “other facilitation.” At least 11 of the 25 states, or 44 percent, have adopted laws containing the former kind of language.

Provisional Indicators of State FTF Compliance Subcategory 5:
Bring Foreign Terrorist Fighters to “Justice”

Assessment criterion   

Does the state ensure that any person who participates in the financing, planning, preparation, or perpetration of terrorist acts or in supporting terrorist acts is “brought to justice”?[21]

Provisional Points          

States could fall into one of three tiers:

  • 10 points = Available evidence suggests the state complied with these requirements;
  • 6 points = Available evidence suggests the state demonstrated partial compliance with the requirements, and/or efforts to implement the requirements that had not yet been fully realized; or
  • 2 points = Available evidence suggests the state demonstrated little to no compliance with these requirements of the resolution.

Analysis

Our provisional research suggests that many states have worked to “bring to justice” those involved in terrorist acts: 20 of the 25 states surveyed, or 80 percent, have prosecuted or taken other actions against suspected foreign terrorist fighters and/or individuals involved in recruitment or providing other forms of support to FTFs. Multiple states have noted difficulties, however, with successfully prosecuting individuals for these crimes due, for instance, to lack of evidence. Other reported difficulties encountered by states, including Pakistan and Tunisia, involve legal systems that may not be well equipped to handle cases brought against suspected foreign fighters. For instance, the U.S. State Department has reported that in Pakistan suspected terrorists often intimidate witnesses, the police, victims, prosecutors, and judges, which contributes to the slow progression of cases and a high acquittal rate for suspected terrorists.[22] Social media also plays a notable role in some prosecutions, as states, including Denmark and Jordan, have charged individuals for posting “pro-ISIS” materials on social media websites like Facebook.[23]

Aggregate Provisional Indicators of State Compliance with Five Key Foreign Terrorist Fighter Elements of Resolution 2178

Assessment criterion   

Among the five subcategories concerning documented compliance with five key foreign terrorist fighter elements of Resolution 2178, how many combined provisional points did the state obtain?

Provisional Points          

States could in principle receive between 0 points (lowest possible score) and 50 points (highest possible score).

Analysis

Our provisional research suggests that many of the states under review have implemented the bulk of the highlighted FTF provisions of Resolution 2178, responding rapidly and robustly to the threat of foreign terrorist fighters as identified by the U.N. Security Council. Nonetheless, under the applied methodology, a handful of the reviewed states have taken relatively fewer documented steps to comply with the key FTF elements of Resolution 2178. Additional research would be useful in two areas: first, the relative speed of implementation of these obligations, and second, how states themselves understand and interpret Security Council-imposed counterterrorism obligations requiring that states bring their respective domestic legislation into alignment with the relevant resolution. One potential reason, for instance, why some states may not be fully complying is because they lack the legal and institutional infrastructure necessary to do so. But another reason might be that these states have normative conflicts between their domestic constitutional system and some aspects (particularly the more vague aspects) of the obligations entailed in Resolution 2178. Alternatively, a state may be interpreting the resolution in a way that would not create additional obligations beyond the state’s extant generic anti-terrorism laws.

Provisional Indicators of State Support of Five Key Aspects of Principled Humanitarian Action in Counterterrorism Contexts

According to our scale, states could receive a maximum of 50 points for supporting principled humanitarian action in counterterrorism contexts. For this main category, we divided points into five subcategories, each worth up to ten points. As noted above, we assessed these subcategories by examining primary and secondary sources, including laws and regulations, presidential statements, royal decrees, news reports (primarily in English), and reports by non-governmental organizations (NGOs) and government agencies, such as the U.S. Department of State’s Country Reports on Terrorism. We also used data from the World Bank and the United Nations Financial Tracking Service. Using these sources, we conducted research through July 2015. Our provisional findings concerning state support of principled humanitarian action in counterterrorism contexts should be read with the caveats and limitations provided in the methodology section above.

Provisional Indicators of State Support of Key Aspects of Principled Humanitarian Action in Counterterrorism Contexts Subcategory 1:
Knowability of Anti-Terrorism Lists

Assessment criteria      

Are the domestic anti-terrorism list(s) (including those implementing Security Council al-Qaeda sanctions) and the requisite measures relating to that list/those lists publicly available?

Provisional Points          

For this subcategory, states could receive 10, 5, or 0 points:

  • 10 points = Available evidence suggests that such list(s) are publicly available and discernable;
  • 5 points = Available evidence suggests that such list(s) are somewhat publicly available and/or partially discernible; or
  • 0 points = Available evidence suggests that such list(s) are not publicly available or are not discernible.

Analysis               

Having publicly available terrorist lists helps allow humanitarian organizations to conduct thorough and accurate vetting of local partners and to comply with counterterrorism-related internal or external due diligence requirements. (For the purposes of this report, we do not address potential human rights or other concerns regarding the validity, scope, and enforcement mechanisms associated with the Security Council’s or an individual state’s respective counterterrorism lists.) Our provisional research indicates that many states maintain transparent and publicly available terrorist lists that aim to comply with the relevant U.N. counterterrorism resolutions. In addition, the European Union has developed a terrorist list that binds its member states. Some European Union members, such as the Netherlands and Sweden, also maintain their own domestic lists.[24] The United States even maintains multiple domestic terrorist lists.[25] While states generally provided publicly accessible terrorist lists, the multitude of terrorist lists—and some states’ extraterritorially applicable counterterrorism laws—still present humanitarian actors with a complex and potentially confusing array of designations. Additional research on the issue of counterterrorism-related legal fragmentation and legal obligations emanating from multiple jurisdictions would be useful.[26]

Provisional Indicators of State Support of Key Aspects of Principled Humanitarian Action in Counterterrorism Contexts Subcategory 2:
Ease of Navigability and Efficiency of the Regulatory System

Assessment criterion   

Are regulations relating to funding, registration, and/or financial reporting navigable and is the regulatory system efficient?  

Provisional Points          

States could receive up to 10 points for this subcategory:

  • 10 points = Available evidence suggests the relevant portions of the regulatory system are relatively easy to navigate and efficient;
  • 5 points = Available evidence suggests the relevant portions of the regulatory system are relatively challenging to navigate and/or relatively inefficient; or
  • 0 points = No evidence suggests the relevant portions of the regulatory system are relatively easy to navigate and/or efficient, or available evidence suggests these portions of the regulatory system are relatively difficult to navigate and/or inefficient.

Analysis

According to our provisional analysis, a large majority of states under review appear to institute, for non-profit organizations, regulatory systems that are fairly easily navigable and efficient. As these provisional assessments do not focus on humanitarian organizations in particular but rather on non-profit organizations in general, this is a significant limitation to our analysis. Some states—such as the United States and those states whose funding is made available through regional bodies, such as the European Union—may impose relatively more onerous reporting requirements, but the format, methodology, and justification of those reporting requirements are comparatively clear, and thus organizations may be able to predict how much work it will take to comply with those requirements. As seen primarily through the lens of information provided by the International Center for Not-for-Profit Law (ICNL), multiple states impose relatively less efficient and more-difficult-to-navigate regulatory systems for non-profit organizations, with respect to funding, registration, and financial reporting. Additional research that focuses more on the relative ease of navigability and efficiency of the regulatory system for humanitarian organizations in particular would strengthen the basis here for comparative assessment.

Provisional Indicators of State Support of Key Aspects of Principled Humanitarian Action in Counterterrorism Contexts Subcategory 3:
Explicit Exemptions from Counterterrorism Measures of Principled Humanitarian Action

Assessment criteria      

i. Does domestic legislation limiting travel to conflict zones involving terrorists exempt staff of principled humanitarian organizations (expressly or as a subset of non-profit organizations) automatically (or potentially through a petition/license);

ii. Does domestic legislation (applicable within the territory of the state and/or extraterritorially) restricting engagement with terrorists exempt impartial wartime medical care for terrorists; and

iii. Does domestic legislation exempt other forms of principled humanitarian action in conflict zones involving terrorists?

Provisional Points          

States could receive the following points (up to 10 in total) for this subcategory:

  • Up to 3 points for assessment criterion i:
    • 3 points = Available evidence suggests the state has promulgated this exemption/these exemptions;
    • 1–2 points = Available evidence suggests the state has promulgated partial versions of this exemption/these exemptions; and
    • 0 points = No available evidence suggests that the state has promulgated partial or full versions of this exemption/these exemptions.
  • Up to 3 points for assessment criterion ii:
    • 3 points = Available evidence suggests the state has promulgated this exemption/these exemptions;
    • 1–2 points = Available evidence suggests the state has promulgated partial versions of this exemption/these exemptions; and
    • 0 points = No available evidence suggests that the state has promulgated partial or full versions of this exemption/these exemptions.
  • Up to 4 points for assessment criterion iii:
    • 4 points = Available evidence suggests the state has promulgated this exemption/these exemptions;
    • 1–3 points = Available evidence suggests the state has promulgated partial versions of this exemption/these exemptions; and
    • 0 points = No available evidence suggests that the state has promulgated partial or full versions of this exemption/these exemptions.

Analysis               

Our provisional research suggests that only four of the 25 states reviewed, or 12 percent, have legislation containing explicit exemptions from counterterrorism measures for principled humanitarian action. For instance, Australia has exempted the travel of individuals to conflict zones in foreign countries if such travel seeks to provide “aid of a humanitarian nature.” Australian law prohibiting association with terrorist organizations also exempts humanitarian assistance.[27] Canadian law specifies that “terrorist activity” does not include acts conducted in accordance with customary international law or conventional international law applicable to the conflict, which may be interpreted to encompass certain aspects of principled humanitarian action.[28] New Zealand allows for the provision of food, clothing, or medicine to designated terrorist entities, insofar as such assistance “does no more than satisfy essential human needs” of the designated individual.[29] Finally, the United States exempts the provision of medicine and religious materials in its material support law, and the U.S. Department of Treasury can issue licenses to individuals or organizations seeking to engage in otherwise prohibited activities.[30]

Our provisional research did not uncover, for the remaining 21 surveyed states, any explicit exemptions from counterterrorism measures for principled humanitarian action. To be clear, however, that does not mean that relevant forms of principled humanitarian action are not exempted under those states’ respective counterterrorism measures. It may be the case that there are valid reasons why a particular state does not expressly exempt various forms of principled humanitarian action from counterterrorism legislation. Depending on the domestic legal system, a state may not need to explicitly exempt certain conduct for that conduct not to fit within the definition of a proscribed counterterrorism offense. More specifically, the relevant counterterrorism legislation may already be narrowly crafted in such a way that all forms of principled humanitarian action are excluded from its ambit and thus an exemption is not required. For example, the legislation prohibiting support to terrorism may clearly require an intent to support violent terrorism or to further the terrorist objectives of the proscribed group, or the legislation may not define association with or coordination with designated groups in such a manner that humanitarian negotiations could be reasonably interpreted to fall within the ambit of the underlying support-for-terrorism offense. (Though it could also be the case that an exemption, even where not necessarily legally required, provides a reaffirmation and assurance of the unique nature of principled humanitarian assistance.) Further state-specific research with respect to this subcategory would be useful.

Provisional Indicators of State Support of Key Aspects of Principled Humanitarian Action in Counterterrorism Contexts Subcategory 4:
No reported legal proceedings on the basis of principled humanitarian action in conflict zones involving terrorists nor reported “chilling effect” of principled humanitarian action due to state counterterrorism measures

Assessment criteria      

i. Have (current or former) staff of principled humanitarian organizations been subject under the jurisdiction of the state to civil or criminal proceedings on the basis of engaging in principled humanitarian action in conflict zones involving terrorists; and

ii. Does the state’s domestic counterterrorism legislation have a reported “chilling effect” (self-imposed curtailment) on principled humanitarian organizations?

Provisional Points          

States could receive the following points (up to 10) for this subcategory:

  • Up to 5 points for assessment criteria i:
    • 5 points = No available evidence suggests the state has subjected the staff of principled humanitarian organizations to civil or criminal proceedings based on their engagement in principled humanitarian action in conflict zones involving terrorists; or
    • 0 points = Available evidence suggests the state has subjected the staff of principled humanitarian organizations to civil or criminal proceedings based on their engagement in principled humanitarian action in conflict zones involving terrorists.
  • Up to 5 points for assessment criteria ii:
    • 5 points = No available evidence suggests the state’s domestic counterterrorism legislation has resulted in a self-imposed curtailment of humanitarian action; or
    • 0 points = Available evidence suggests the state’s domestic counterterrorism legislation has resulted in a self-imposed curtailment of humanitarian action.

Analysis

As used in this report, a “chilling effect” is a publicly documented self-imposed curtailment of principled humanitarian action by a humanitarian organization in relation to an armed conflict involving terrorists due to a specific state’s (or set of states’) counterterrorism measure(s). We attempted to document them because, to date, the potential for such “chilling effects” has been framed as one of the key examples of the negative impact of counterterrorism measures on humanitarian action.[31] With the caveats noted below in mind, our provisional research did not uncover a significant body of evidence establishing that humanitarian organizations have publicly reported that the counterterrorism measures of a specific state (or a group of states) have resulted in or otherwise contributed to such chilling effects. In accordance with the methodology for this report, most states therefore provisionally received the full 10 available points for this category.

What should we make of this provisional analysis? The relative lack of documented “chilling effects” in this category does not mean that there necessarily are no such effects. Humanitarian actors—including, as noted above, the ICRC—have specifically connected counterterrorism measures to (potential and/or real) adverse impacts on humanitarian action. It may be that it is, in general, difficult to quantify or otherwise measure the prevalence of relevant legal proceedings (whether criminal or civil). For instance, there are examples of designations of and the institution of legal proceedings against individuals who work for putative “humanitarian” organizations, but the available record may not clearly establish whether those individuals or organizations were “principled” humanitarian organizations in the sense used here. Moreover, the very question of impact—what counts as impact and how to measure impact—remains a matter of debate for which there have been relatively few efforts to establish consensus within the humanitarian community. As a result, currently we do not have a reliable way of knowing how many projects an organization does not propose or carry out (despite concluding that such a project would be necessary) due to their concerns about counterterrorism measures. Nor, similarly, do we know whether there are staff that do not undertake a field mission due to such concerns. In short, the main issue here may very well be a lack of underlying sources, despite the reported importance of this category among humanitarian actors.

In a similar vein, it could be that the humanitarian community has not devised a quantifiable way to document such impacts. Indeed, it may be particularly difficult to measure this type of chilling effect from counterterrorism measures—or to measure chilling effects in general. Merely by discussing their concerns around chilling effects, humanitarian organizations may fear being accused of unlawfully supporting terrorists (even where those humanitarian actions are protected under IHL). They may also fear retribution from host states, or dwindling financial support from states and other donors. More generally, it is of course much more difficult to measure negative action (in the sense of a self-imposed curtailment) than positive action.

Nonetheless, it is important to bear in mind that some evidence of the humanitarian community’s response to recent crises, such as Somalia, illustrates the fact that counterterrorism policies may indeed operate in a way that leads to self-imposed curtailments of humanitarian assistance. With all of these concerns in view, policymakers and those seeking to evaluate the scope and impact of counterterrorism policies on principled humanitarian action would benefit from more documentation (more in terms of amount and specificity) of such putative chilling effects. For as long as the impact of “chilling effects” remains in the realm of anecdote, it may be difficult for humanitarian actors to mobilize meaningful solutions on the part of governments and intergovernmental bodies such as the Security Council.

Provisional Indicators of State Support of Key Aspects of Principled Humanitarian Action in Counterterrorism Contexts Subcategory 5:
Financial Support for Humanitarian Action in Iraq and Syria

Assessment criterion   

What amount of international humanitarian aid contributions, as a percentage of GDP, has the state contributed to Iraq and Syria in 2015 (as of July 2015)?

Provisional Points          

For this subcategory, we used World Bank population data[32] and Financial Tracking Service data[33] to put states into one of five tiers and to allocate an accompanying set of points, with up to 10 points in total:

  • 10 points = Tier 1—states with highest reported humanitarian funding contributions to Iraq and Syria in 2015 (as of July 2015) as a percentage of GDP;
  • 8 points = Tier 2;
  • 6 points = Tier 3;
  • 4 points = Tier 4; or
  • 2 points = Tier 5—states with lowest reported humanitarian funding contributions (if any) to Iraq and Syria in 2015 (as of July 2015) as a percentage of GDP.

Analysis

In examining the amount of international humanitarian aid contributions that states have provided to Iraq and Syria (the two states where the terrorist organizations that Resolution 2178 aims to suppress hold the greatest amount of territory) from January to July 2015, we added financial support captured in the Financial Tracking Service made to both of those states and calculated that amount as a percentage of the contributing state’s GDP. We assigned provisional points by dividing states into five tiers based on the percentage of GDP that states provided to Iraq and Syria, with states making the greatest recorded financial contributions receiving ten points, and states making the smallest (or no) financial contributions receiving two points. Canada, Denmark, Norway, the United Arab Emirates, and the United Kingdom received ten points each, while Bosnia, China, Jordan, Lebanon, Libya, Morocco, Pakistan, Tunisia, Turkey, and Uzbekistan received two points because they did not make any financial contributions captured in the Financial Tracking Service to either Iraq or Syria from January to July 2015.

Aggregate Provisional Indicators of State Support of Principled Humanitarian Action in Counterterrorism Contexts

Assessment criterion   

Among the five subcategories concerning support of principled humanitarian action in counterterrorism contexts, how many combined points did the state obtain?

Provisional Points          

States could in principle receive between 0 points (lowest possible score) and 50 points (highest possible score).

Analysis

Generally speaking, our provisional research suggests that many of the states under review have supported principled humanitarian action in counterterrorism contexts, yet there is a significant range of such support under the applied methodology.

[1] Other researchers have quantitatively assessed, for instance, compliance with Security Council obligations in the context of ending civil wars. Christoph Mikulaschek and Chris Perry, “When Do Civil-War Parties Heed the UN? Findings from the IPI Security Council Compliance Database,” New York: International Peace Institute, December 2013.

[2] Resolutions passed under the United Nations’ Chapter VII powers are generally considered to be legally obligatory on all member states. In addition, the presence of certain language, such as “decides,” often signals a legal obligation, but the use of other language, such as “calls upon,” may be less clear. Security Council Report, Special Research Report No. 1: Security Council Action Under Chapter VII: Myths and Realities, June 23, 2008, available at http://www.securitycouncilreport.org/special-research-report/lookup-c-glKWLeMTIsG-b-4202671.php. As President Obama noted in his remarks following the passage of Resolution 2178, however,

[The resolution] is legally binding. It establishes new obligations that states must meet. Specifically, nations are required to prevent and suppress the recruiting, organizing, transporting, or equipping of foreign terrorist fighters as well as the financing of their travel or activities. Nations must prevent the movement of terrorists or terrorist groups through their territory and ensure that domestic laws allow for the prosecution of those who attempt to do so.

Remarks of President Barack Obama, U.N. SCOR, 7272 mtg. at 4, U.N. Doc. S/PV.7272 (Sept. 24, 2014). We used the work of United Nations scholars and past U.N. Security Council counterterrorism resolutions to help determine which of Resolution 2178’s provisions constituted legally binding obligations on member states. See, e.g., Michael C. Wood, The Interpretation of Security Council Resolutions, 2 Max Planck Yearbook of United Nations Law, 73-95 (1998).

[3] U.N. Office of Drugs and Crime, Terrorism Prevention Branch, “Electronic Legal Resources on International Terrorism,” available online https://www.unodc.org/tldb/laws_legislative_database.html.

[4] See Peter R. Neumann, Foreign Fighter Total in Syria/Iraq Now Exceeds 20,000; Surpasses Afghanistan Conflict in the 1980s, International Centre for the Study of Radicalisation and Political Violence (Jan. 26, 2015), available at http://icsr.info/2015/01/foreign-fighter-total-syriairaq-now-exceeds-20000-surpasses-afghanistan-conflict-1980s/ (citing the number of foreign fighters from Tunisia as 1,500 to 3,000).

[5] Jamie Crawford & Laura Koran, U.S. Officials: Foreigners Flock to Fight for ISIS, CNN News (Feb. 11, 2015), available at http://www.cnn.com/2015/02/10/politics/isis-foreign-fighters-combat/.

[6] Id.

[7] S.C. Res. 2178, paras. 2, 5, and 8, U.N. Doc. S/RES/2178 (Sept. 24, 2014).

[8] See Appendix, Australia.

[9] See Appendix, France.

[10] See Appendix, United Kingdom.

[11] S.C. Res. 2178, para. 6(a), U.N. Doc. S/RES/2178 (Sept. 24, 2014).

[12] See Appendix, Denmark.

[13] See Appendix, Saudi Arabia.

[14] See Appendix, Australia.

[15] See Appendix, Norway.

[16] See Appendix, Australia.

[17] See Appendix, Tunisia.

[18] S.C. Res. 2178, paras. 6(b) and 12, U.N. Doc. S/RES/2178 (Sept. 24, 2014).

[19] See Appendix.

[20] S.C. Res. 2178, para. 6(c), U.N. Doc. S/RES/2178 (Sept. 24, 2014).

[21] S.C. Res. 2178, para. 6, U.N. Doc. S/RES/2178 (Sept. 24, 2014).

[22] See Appendix, Pakistan.

[23] See Appendix, Denmark and Jordan.

[24] See Appendix, the Netherlands and Sweden.

[25] See Appendix, United States.

[26] See Financial Action Task Force, Risk of Terrorist Abuse in Non-Profit Organisations (June 2014) 1, http://www.fatf-gafi.org/media/fatf/documents/reports/Risk-of-terrorist-abuse-in-non-profit-organisations.pdf (stating that non-profit organizations (NPO) most at risk of abuse by terrorist organizations “appear to be those engaged in ‘service’ activities, and that operate in a close proximity to an active terrorist threat. This may refer to an NPO operating in an area of conflict where there is an active terrorist threat. However, this may also refer to an NPO that operates domestically, but within a population that is actively targeted by a terrorist movement for support and cover. In both cases the key variable of risk is not geographic, but the proximity to an active threat.”).

[27] See Appendix, Australia.

[28] See Appendix, Canada.

[29] See Appendix, New Zealand.

[30] See Appendix, United States.

[31]  See Kate Mackintosh & Patrick Duplat, Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action, OCHA and the NRC (July 2013), at 84 (defining “chilling effects” as situations where “[o]perational decisions were made not strictly according to need but, in part, to minimise organisations’ exposure to legal liability.”).

[32] See http://data.worldbank.org/indicator/NY.GDP.MKTP.CD.

[33] See https://fts.unocha.org/pageloader.aspx?page=search-customsearch.

 

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