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Legislating against humanitarian principles: A case study on the humanitarian implications of Australian counterterrorism legislation

  • Phoebe Wynn-Pope, Yvette Zegenhagen and Fauve Kurnadi

Abstract

The humanitarian principles – humanity, neutrality, impartiality and independence – have come to characterize effective humanitarian action, particularly in situations of armed conflict, and have provided a framework for the broader humanitarian system. Modern counterterrorism responses are posing significant challenges to these principles and the feasibility of conducting principled humanitarian assistance and protection activities. This article explores the origins of the principles, the history behind their development, and their contemporary contribution to humanitarian action. The article then discusses some of the ways in which the principles are threatened, both by practice and by law, in the Australian context, and finally makes suggestions as to how the principles can be reclaimed and protected for the future of effective, impartial humanitarian action.

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1 Humanity, impartiality, neutrality, independence, volunteer service, unity and universality are the seven Fundamental Principles of the Red Cross and Red Crescent Movement, proclaimed by the 20th International Conference of the Red Cross in Vienna in 1965. They bring together the humanitarian work of the National Red Cross and Red Crescent Societies, the International Committee of the Red Cross (ICRC) and the International Federation of Red Cross and Red Crescent Societies (IFRC). Jean Pictet, The Fundamental Principles of the Red Cross: Commentary, 1 January 1979, available at: www.icrc.org/eng/resources/documents/misc/fundamental-principles-commentary-010179.htm (all internet references were accessed in July 2015). It is important to note that the first three principles of humanity, neutrality and impartiality also appeared in the very first Geneva Convention of 1864: Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 22 August 1864 (entered into force 22 June 1865, no longer in force), available at: www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?action=openDocument&documentId=477CEA122D7B7B3DC12563CD002D6603.

2 These first three principles – humanity, impartiality and neutrality – were strongly affirmed as core principles within the UN system following the adoption of UNGA Res. 46/182, 19 December 1991. In 1994 the International Red Cross and Red Crescent Movement and disaster relief NGOs developed a Code of Conduct, which introduced the fourth humanitarian principle, independence. See ICRC and IFRC, Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organizations (NGOs) in Disaster Relief (1994 Code of Conduct), Geneva, 1994, available at: www.icrc.org/eng/resources/documents/publication/p1067.htm.

3 Jean Pictet, Humanitarian Law and the Protection of War Victims, Henry Dunant Institute, Geneva, 1975, p. 28.

4 Elizabeth Ferris, The Politics of Protection: The Limits of Humanitarian Action, Brookings Institution Press, Washington, DC, 2011, p. 7.

5 ICRC, The Fundamental Principles of the Red Cross and Red Crescent, Publication Ref. 0513, 1996, p. 4, available at: www.icrc.org/eng/assets/files/other/icrc_002_0513.pdf.

6 Zakat, or the practice of giving alms, is “a form of Islamic social financing through which all Muslims whose wealth falls above a certain threshold are required by the Qur'an to give 2.5% of their assets each year to help people in need”: Chloe Stirk, An Act of Faith: Humanitarian Financing and Zakat, Global Humanitarian Initiative Briefing Paper, March 2015, p. 5.

7 Tzedakah is “a form of self-taxation rather than a voluntary donation” in which “money is generally given to the poor, healthcare institutions, synagogues or educational institutions”: ibid.

8 Dāna in Hinduism “can be given as offerings to deities (nirmalya), to individuals, to priests, spiritual guides or teachers and institutions (NGOs). Some scriptures suggest giving 10% of an individual's earnings to charity, with the caution that a householder should never give gifts beyond their means – they should not make their family and dependents worse off on account of their generosity”: ibid.

9 The concept of dāna is a form of almsgiving that also exists in Buddhism. It is considered “the first of the Ten Perfecting Qualities (Dasa Parami Dhamma) that helps a Bodhisathwa to attain Buddhahood”: ibid.

10 ICRC, Solferino and the International Committee of the Red Cross: Background, Facts and Figures, June 2010, available at: www.icrc.org/eng/resources/documents/feature/2010/solferino-feature-240609.htm.

11 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (GC I), Arts 12, 15; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (GC II), Art. 12; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Art. 27.

12 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 22 August 1864, Art. 5.

13 Ibid., Art. 1.

14 Ibid., Art. 2.

15 Ibid., Art. 6.

16 GC I; GC II; Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (GC III); GC IV; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (AP I); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (AP II).

17 Common Art. 3, emphasis added.

18 International law categorizes armed conflict into two distinct types: international armed conflict (IAC) and non-international armed conflict (NIAC). While an IAC is concerned with conflict between two or more States (or High Contracting Parties to the Geneva Conventions), a NIAC is restricted to those conflicts taking place either between government armed forces and non-governmental armed groups, or between such groups. In terms of applicable treaty law, the four Geneva Conventions and AP I apply to IACs, whereas common Article 3 and AP II apply to NIACs.

19 Common Art. 3.

20 AP I, Art. 81(2–4).

21 As of 15 June 2015, there are 196 signatories to the four Geneva Conventions – that is, every State in the world. ICRC, States Party to the Following International Humanitarian Law and Other Related Treaties, 15 June 2015, available at: www.icrc.org/applic/ihl/ihl.nsf/.

22 The Movement defines these four fundamental principles as follows: “Humanity: The Red Cross, born of a desire to bring assistance without discrimination to the wounded on the battlefield, endeavours – in its international and national capacity – to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being. It promotes mutual understanding, friendship, co-operation and lasting peace amongst all peoples. Impartiality: It makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavours only to relieve suffering, giving priority to the most urgent cases of distress; Neutrality. In order to continue to enjoy the confidence of all, the Red Cross may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature. Independence: The Red Cross is independent. The National Societies, while auxiliaries in the humanitarian services of their Governments and subject to the laws of their respective countries, must always maintain their autonomy so that they may be able at all times to act in accordance with Red Cross principles.” J. Pictet, above note 1.

23 “The first systematic presentation of the principles of the Red Cross … dates from 1955 and served as the basis for the official Proclamation which today has the force of law”: Ibid. Additionally, the 25th International Conference of the Red Cross reaffirmed the importance of the Fundamental Principles by including them in the Preamble to the Movement's Statutes and, at all times, States are called upon to respect adherence by the Movement to the Fundamental Principles: ICRC, above note 5.

24 In 1921, the Fundamental Principles of the Movement were incorporated into the revised Statutes of the ICRC: Ibid.

25 J. Pictet, above note 1.

26 Statutes and Rules of Procedure of the International Red Cross and Red Crescent Movement, adopted by the 25th International Conference of the Red Cross at Geneva in October 1986. The Statutes were first adopted in 1928, then revised in 1952. ICRC, Red Cross Law, 31 October 1995, available at: www.icrc.org/eng/resources/documents/misc/57jmr8.htm.

27 The 19th Session of the League's Board of Governors (Oxford, 1946) adopted a declaration confirming the 1921 principles. The 18th International Conference of the Red Cross (Toronto, 1952) reaffirmed those principles adopted in 1946. The principles were not, however, the subject of a systematic treatise until 1955, when Jean Pictet defined and analyzed all the values which guide the work of the Movement. On the basis of this in-depth study, the Movement's seven Fundamental Principles as they stand today were unanimously adopted in 1965 by the 20th International Conference of the Red Cross. The 25th International Conference of the Red Cross (Geneva, 1986) reaffirmed the importance of the Fundamental Principles by including them in the Preamble to the Movement's Statutes. The responsibility of the National Societies to respect and disseminate knowledge of the Principles was underscored in new statutory provisions, while States were called upon to respect at all times the adherence by all components of the Movement to the Fundamental Principles.

28 UNGA Res. 46/182, above note 2.

29 UNGA Res. 58/114, 5 February 2004.

30 Steering Committee for Humanitarian Response, SCHR Members, 2015, available at: www.schr.info/about.

31 1994 Code of Conduct, above note 2.

32 Comprised of the Humanitarian Accountability Partnership (HAP) International, People In Aid and the Sphere Project, which joined forces to seek greater coherence for users of humanitarian standards.

33 Groupe URD, HAP International, People In Aid and the Sphere Project, Core Humanitarian Standard on Quality and Accountability, 1st ed., 2014.

34 Through its voluntary initiative, the Sphere Project brings together a broad spectrum of humanitarian agencies who share the common goal of wanting to improve the quality of humanitarian assistance and the accountability of humanitarian actors. The Sphere Project outlines a Humanitarian Charter and has over 540 organizational signatories: www.sphereproject.org/about/.

35 The European Consensus on Humanitarian Aid is a strategic framework working to guide the actions of the European Union and its member States to deliver effective, high-quality and coordinated humanitarian assistance, see http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV:ah0009.

36 “The Good Humanitarian Donorship (GHD) initiative is an informal donor forum and network which facilitates collective advancement of GHD principles and good practices. It recognises that, by working together, donors can more effectively encourage and stimulate principled donor behaviour and, by extension, improved humanitarian action”, see www.ghdinitiative.org/.

37 States are made aware of these obligations through the four Geneva Conventions and various relevant UNGA and UN Security Council (UNSC) resolutions.

38 George W. Bush, address to a joint session of Congress on 20 September 2001, available at: http://edition.cnn.com/2001/US/09/20/gen.bush.transcript/.

39 Jessica Burniske, Naz Modirzadeh and Dustin Lewis, Counter-Terrorism Laws: What Aid Agencies Need to Know, Humanitarian Practice Network, November 2014, available at: www.odihpn.org/hpn-resources/network-papers/counter-terrorism-laws-what-aid-agencies-need-to-know.

40 UNSC Res. 1373, 28 September 2001, para. 1(a).

41 Ibid., para. 2(a).

42 Ibid., para. 1(d).

43 Kate Mackintosh and Patrick Duplat, Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action, UN Office for the Coordination of Humanitarian Affairs and Norwegian Refugee Council, July 2003.

44 UNSC Res. 1373, above note 40. This has been written on extensively: see K. Mackintosh and P. Duplat, above note 43; J. Burniske, N. Modirzadeh and D. Lewis, above note 39; Williams, George, “A Decade of Anti-Terror Laws”, Melbourne University Law Review, Vol. 37, 2011.

45 See, for example: K. Mackintosh and P. Duplat, above note 43; Fraterman, Justin A., “Criminalizing Humanitarian Relief: Are U.S. Material Support for Terrorism Laws Compatible with International Humanitarian Law?”, New York University Journal of International Law and Politics, Vol. 46, Spring 2014, pp. 399470; Margulies, Peter, “Accountable Altruism: The Impact of the Federal Material Support Statute on Humanitarian Aid”, Suffolk Transnational Law Review, Vol. 34, 2011, pp. 539568; Adelsberg, Sam, Pitts, Freya and Shebaya, Sirine, “Chilling Effect of the Material Support Law on Humanitarian Aid: Causes, Consequences, and Proposed Reforms”, Harvard National Security Journal, Vol. 4, No. 2, 2012–2013, pp. 282319.

46 See Civil Aviation (Offenders on International Aircraft) Act 1970 (Cth), which implemented the Convention on Offences and Certain Other Acts Committed On Board Aircraft, signed at Tokyo on 14 September 1963, to which Australia acceded on 22 June 1970. This act has now been replaced by the Crimes (Aviation) Act 1991 (Cth).

47 Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth).

48 G. Williams, above note 44, p. 1137.

49 UNSC Res. 1373, above note 40.

50 MacDonald, Edwina and Williams, George, “Combating Terrorism: Australia's Criminal Code since September 11, 2001”, Griffith Law Review, Vol. 16, No. 1, 2007, pp. 2754, available at: www.gtcentre.unsw.edu.au/news/docs/Terrorism_Criminal_Law2.pdf.

51 Andrew Lynch, Nicola McGarrity and George Williams, Inside Australia's Anti-Terrorism Laws and Trials, NewSouth Publishing, Sydney, 2015.

52 G. Williams, above note 44, p. 1137.

53 Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism, Cambridge University Press, Cambridge, 2011, p. 310.

54 Ibid.

55 Criminal Code Act 1995 (Cth), 15 March 1995 (Criminal Code).

56 As Mackintosh and Duplat identified in K. Mackintosh and P. Duplat, above note 43, p. 46: “Although it is traditional for sanctions regimes to contain some form of humanitarian exemption, this is not always the case … the statutory humanitarian exemption in US sanctions law (under the IEEPA) was overridden in the case of US counter-terrorist sanctions. An alternative type of humanitarian exemption is offered by the provision of a licence or waiver for one or more humanitarian organisations to operate in contexts subject to sanctions. However, as these licences apply to liability under economic sanctions regimes they do not provide any kind of legal immunity from prosecution under material support laws in jurisdictions where material support could encompass humanitarian action.” Unlike the United States, Australia has incorporated a humanitarian exemption into its domestic counterterrorism law, as will be discussed below.

57 Criminal Code, div. 102.8.

58 Ibid., div. 102.8(4)(c).

59 Ibid., div. 101.2.

60 UK Terrorism Act 2006, section 6 (refers to providing “instruction or training”); EU Council Framework Decision of 13 June 2002 on combating terrorism (2002/475/JHA), Art. 2 (refers to “supplying information or material resources, or by funding its activities in any way”).

61 Criminal Code, div. 102.5.

62 See GC I, Art. 47; GC II, Art. 48; GC III, Art. 127; GC IV, Art. 144. Art. 47 of GC I states: “The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to the entire population, in particular to the armed fighting forces, the medical personnel and the chaplains.” See also the Statutes of the International Red Cross and Red Crescent Movement, Art. 3(2), which stipulates that National Societies “disseminate and assist their governments in disseminating international humanitarian law”.

63 Criminal Code, div. 102.6.

64 Ibid., divs 102.6(1) and (2) respectively.

65 K. Mackintosh and P. Duplat, above note 43, p. 24.

66 The term “declared area” is defined by the Australian government as an area in a foreign country in which it is established to the satisfaction of the minister for foreign affairs that a listed terrorist organization is engaging in hostile activity. Australian Government, Australian National Security, available at: www.nationalsecurity.gov.au/WhatAustraliaisdoing/Pages/FrequentlyAskedQuestionsDeclaredAreaOffence.aspx.

67 Australian Government, Australian National Security, available at: www.nationalsecurity.gov.au/WhatAustraliaisdoing/Pages/DeclaredAreaOffence.aspx.

68 Ibid.

69 Criminal Code, divs 119.2(1) and (2).

70 Ibid., div. 119.2(3)(a).

71 US District Court, United States of America v. Tarik Ibn Osman Shah, Rafiq Sabir and Mahmud Faruq Brent, 474 F. Supp. 2d 492, SDNY 2007. Significant factors in these convictions were both the ideological affinity of the doctors and their intent to work under the “direction and control” of the group, which were found to be indicative of their material support for the group. Despite this, there does not seem to be a push to prosecute doctors operating independently of DTOs. The prosecution in Shah indicated that a doctor in the normal course of treating a “jihadist”, or an NGO doctor working in the course of his or her work, would not be prosecuted, though this has not yet been tested in court. See also Sara Pantuliano, Kate Mackintosh and Samir Elhawary with Victoria Metcalfe, Counter-Terrorism and Humanitarian Action: Tensions, Impact and Ways Forward, Humanitarian Policy Group Brief No. 43, October 2011, p. 11.

72 US Supreme Court, Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2010.

73 J. A. Fraterman, above note 49, p. 409.

74 18 USC 8 2339A(b)(1), 2006 and Supp. 1112009.

75 Ibid.

76 Criminal Code, div. 102.7. Despite its use throughout, the Criminal Code fails to define the term “support”.

77 K. Mackintosh and P. Duplat, above note 43, p. 41.

78 Criminal Code, div. (1)(a).

79 Ibid., div. 102.1.

80 Terrorism Suppression Act 2002.

81 Ibid., section 10(3).

82 Criminal Code, div. 102.6.

83 NGO Monitor, World Vision, 29 June 2014, available at: www.ngo-monitor.org/article/world_vision_international.

84 Australian Minister for Foreign Affairs, Union of Agricultural Work Committees, media release, 31 May 2012, available at: http://foreignminister.gov.au/releases/2012/bc_mr_120531.html.

85 Ibid.

86 See GC IV, Arts 10, 11, 23, 50, 59, 63; AP I, Art. 70(1); common Art. 3; AP II, Art. 18; Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rule 55: “The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control.” See also Naz K. Modirzadeh, Dustin A. Lewis and Claude Bruderlein, “Humanitarian Engagement Under Counter-Terrorism: A Conflict of Norms and the Emerging Policy Landscape”, International Review of the Red Cross, Vol. 93, No. 883, 2011, p. 626.

87 Criminal Code, div. 101.2.

88 Terrorism Act 2000.

89 Ibid., section 54.

90 The Terrorism Act 2006 provides a definition of the crime of training to supplement the training offence under section 54 of the 2000 Act. The definition under section 6 of the Act includes specific acts such as “the making, handling or use of a noxious substance”; “the use of any method or technique for doing anything else that is capable of being done for the purposes of terrorism, in connection with the commission or preparation of an act of terrorism or Convention offence or in connection with assisting the commission or preparation by another of such an act or offence”; and “the design or adaptation for the purposes of terrorism, or in connection with the commission or preparation of an act of terrorism or Convention offence, of any method or technique for doing anything”. This is in stark contrast to the definition taken by the United States in the Holder case.

91 Council of Europe Treaty Series, No. 196 (entered into force 1 June 2007), Art. 7.

92 Criminal Code, div. 102.5.

93 Ibid., div. 102.1(1).

94 Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014.

95 Criminal Code, div. 119.2.

96 Ibid., div. 119.2(3)(a).

97 Supreme Court of Victoria, R v. Vinayagamoorthy, VSC 148, 31 March 2010.

98 Kate Hagan, “‘Terror Arrest’ at Gunpoint: Police Warned”, Sydney Morning Herald, 5 February 2010, available at: www.smh.com.au/national/terror-arrest-at-gunpoint-police-warned-20100204-ngw0.html#ixzz3hRcbdx6D.

99 GC I, Art. 12; GC II, Art. 12; GC III, Art. 16.

100 Health Care in Danger, Resolution 5, 31st Conference of the International Red Cross and Red Crescent Movement, 2011, para. 1, available at: www.icrc.org/eng/resources/documents/resolution/31-international-conference-resolution-5-2011.htm.

101 United Nations, “Governments, International Community Must Better Protect Health-Care Workers, Facilities during Armed Conflict, Deputy Secretary-General Tells High-level Event”, press release, DSG/SM/805-IHA/1345, 25 September 2014, available at: www.un.org/press/en/2014/dsgsm805.doc.htm.

102 Mackintosh, Kate, “Holder v Humanitarian Law Project: Implications for Humanitarian Action: A View from Médecins Sans Frontières”, Suffolk Transnational Law Review, Vol. 34, No. 3, 2011.

103 Ibid.

104 Ibid.

105 K. Mackintosh and P. Duplat, above note 43, p. 81.

106 UNSC Res. 1844, 20 November 2008.

107 S. Pantuliano, K. Mackintosh and S. Elhawary with V. Metcalfe, above note 71, p. 7.

108 UNSC Res. 1916, 19 March 2010, para. 5.

109 Charity & Security Network, Safeguarding Humanitarianism in Armed Conflict: A Call for Reconciling International Legal Obligations and Counterterrorism Measures in the United States, June 2012, p. 50.

110 Robyn Dixon, “U.S. Policy Seen as Factor in Somalia Famine Deaths”, Los Angeles Times, 2 May 2013, available at: http://articles.latimes.com/2013/may/02/world/la-fg-somalia-famine-20130503.

111 Charter of the United Nations Act 1945 (Cth) (UN Charter Act).

112 UNSC Res. 1373, 28 September 2001.

113 Australian Government, Transaction Reports and Analysis Centre, Terrorism Financing in Australia 2014, 2014, p. 11. See also Autonomous Sanctions Act 2011 (Cth).

114 As of 4 June 2015. Australian Government, Department of Foreign Affairs and Trade, Australia and Sanctions: The Consolidated List, 4 June 2015, available at: http://dfat.gov.au/international-relations/security/sanctions/Pages/consolidated-list.aspx.

115 Australian Government, Transaction Reports and Analysis Centre, above note 113, p. 11.

116 UN Charter Act, section 21.

117 Ibid., section 21(2).

118 Supreme Court of Victoria, Vinayagamoorthy, above note 97.

119 Ibid.

120 Ibid., para. 59.

121 Ibid., paras 67, 69.

122 K. Mackintosh, above note 102, p. 510.

123 Counterterrorism and Humanitarian Engagement Project, An Analysis of Contemporary Anti-Diversion Policies and Practices of Humanitarian Organizations, May 2014, p. 3 and Annex 1D.

124 Ibid., p. 10.

125 Counterterrorism and Humanitarian Engagement Project, Partner Vetting in Humanitarian Assistance: An Overview of Pilot USAID and State Department Programs, Research and Policy Paper, November 2013.

126 Charity & Security Network, above note 109, p. 15.

127 Counterterrorism and Humanitarian Engagement Project, above note 125, p. 4.

128 Ibid., p. 15.

129 Ibid., p. 41.

130 NGO Monitor, World Vision, 29 June 2014, available at: www.ngo-monitor.org/article/world_vision_international.

131 Department of Foreign Affairs and Trade, Risk Management Review of the Australia-Middle East NGO Cooperation Agreement, Final Report, May 2014, p. 2.

132 Ibid.

133 These requirements include “to know the persons or organisations that are being directly assisted; to make sure that people or organisations being directly assisted are not on either of the lists before assistance is provided; to make sure that directly funded persons or organisations are aware of and obliged to comply with these laws; to make sure that directly funded persons or organisations in turn are obliged to make sure that their distribution of the funds or support is made on the same basis.” Department of Foreign Affairs and Trade, above note 131, p. 7.

134 Ibid., p. 7.

135 Ibid., p. 8.

136 Ibid., p. 9.

137 Counterterrorism and Humanitarian Engagement Project, above note 125, p. 6.

138 K. Mackintosh and P. Duplat, above note 43.

139 Terry, Fiona, “The International Committee of the Red Cross in Afghanistan: Reasserting the Neutrality of Humanitarian Action”, International Review of the Red Cross, Vol. 93, No. 881, 2011.

140 Ibid.

141 Feinstein International Center, Humanitarian Agenda 2015: Final Report: The State of the Humanitarian Enterprise, Tufts University, Boston, MA, p. 9.

142 Ibid.

143 Criminal Code, div. 102.8(4)(c).

144 AP I, Art. 70; AP II, Art. 18.

145 ICRC Customary Law Study, above note 86, Rule 55.

146 US Supreme Court, Holder, above note 72, p. 8.

147 Ibid., p. 26.

148 UNGA Res. 60/288, 20 September 2006.

149 Ibid., Plan of Action, IV(2).

150 Common Art. 1.

151 US House of Representatives, H. R. 3526, 113th Congress, 1st Session, Section 2(6), available at: www.gpo.gov/fdsys/pkg/BILLS-113hr3526ih/pdf/BILLS-113hr3526ih.pdf.

152 Ibid.

153 Library of Congress, “H.R.3526 – Humanitarian Assistance Facilitation Act of 2013”, available at: www.congress.gov/bill/113th-congress/house-bill/3526.

154 InterAction, Statement of 66 Organizations in Support of the Humanitarian Assistance Facilitation Act of 2013, available at: www.interaction.org/document/statement-66-organizations-support-humanitarian-assistance-facilitation-act-2013.

155 Marguiles, Peter, “Accountable Altruism: The Impact of the Federal Material Support Statute on Humanitarian Aid”, Suffolk Transnational Law Review, Vol. 34, No. 3, 2011, p. 561.

156 UNGA, Universal Declaration of Human Rights, 10 December 1948, preamble, para. 1.

* The views expressed in this article reflect the authors’ opinions and not necessarily those of Australian Red Cross. The authors would like to thank Alex Milner for his kind assistance in the development and finalization of this article.

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Legislating against humanitarian principles: A case study on the humanitarian implications of Australian counterterrorism legislation

  • Phoebe Wynn-Pope, Yvette Zegenhagen and Fauve Kurnadi

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